The Path of the Prerogatives

Abstract

The path of the prerogatives refers to the process by which the royal prerogative powers outlined in Blackstone’s Commentaries entered into American constitutional law. In 1953, Professor William Crosskey opened up a new window into the Constitution when he pointed out that many of Congress’s enumerated powers had been prerogatives of the British Crown. In The President Who Would Not Be King: Executive Power under the Constitution, Professor Michael McConnell takes Crosskey’s observation as a starting point of his own more systematic analysis of how the Committee of Detail divided these prerogative powers between Congress and the President. Yet neither Crosskey nor McConnell focuses much attention on the fact that many of these powers were already delegated to the United States by the Articles of Confederation. Nor do they ask whether the founders conceived of these powers primarily as legislative or executive powers, on the one hand, or government powers, on the other—a critical distinction reflected in the text of the Constitution by the Necessary and Proper Clause. This article investigates these topics by tracing the path of the prerogatives from 1774 to 1776 in the writings of James Wilson, Benjamin Franklin, John Dickinson, and Thomas Jefferson, highlighting the crucial role played by these powers in Wilson’s 1774 essay on the legislative authority of Parliament, the Articles of Confederation, and the Declaration of Independence. The article also discusses two further issues that any adequate theory of presidential powers must confront: the distinction between government powers and executive powers, and the status of the United States as a legal corporation, in which implied powers are vested without needing to be enumerated. Finally, the article points to new evidence indicating that Jefferson borrowed specific language and ideas from Wilson when drafting the Declaration of Independence.

Whenever I reflect on the origins of Article II, I bump into a number of conceptual problems that make me wonder if the entire field of presidential powers may be somewhat misconceived. My goal in this article is to highlight three of these issues and explore some of the difficulties they raise. The labels I will assign to them are (i) the path of the prerogatives, (ii) the distinction between executive powers and government powers, and (iii) the status of the United States of America as a legal corporation, in the eighteenth-century sense of that concept expounded by Blackstone and other writers. All of these topics are interrelated in rich and intricate ways. Moreover, all of them have profound implications for how we understand the separation of powers, along with the formation of the United States more generally.

My focus on these topics stems partly from my interest in James Wilson, who played a pivotal role in the creation of the American presidency, along with many other key events in the framing and ratification of the Constitution. It was Wilson who first proposed that the executive power of the United States be vested in a single individual; who first called for the President to be popularly elected to make him independent of both Congress and the states; and who initially drafted all three Vesting Clauses, along with the Take Care Clause.¹ In fact, Wilson’s statement ‘that Unity in the Executive instead of being the fetus of Monarchy would be the best safeguard against tyranny’² is one of the primary sources from which the ‘Unitary Executive’ theory derives its name.³ Yet Wilson was also one of the founding era’s strongest nationalists, who conceived of the implied national powers vested in the Government of the United States along lines that diverge from the views of many Unitary Executive theorists. Between 1774 and 1777, he played a critical role in the path of the prerogatives, a theme on which I elaborate below.⁴ Significantly, Wilson drafted the Necessary and Proper Clause, which inter alia rests on a distinction between executive powers and government powers and vests Congress with broad (but not unlimited) authority to carry into execution the exercise of government powers by whatever appropriate legislative means it chooses.⁵ Wilson also was one of the period’s best ‘corporate lawyers’, who helped draft many corporate charters (often styled ‘Constitutions’) that vested powers in a ‘President’ in the years leading up to the Constitutional Convention. Among them were the charters of the United Illinois and Wabash Companies (1780), the Bank of North America (1781), and Dickinson College (1783)—the first of which created an office of President initially occupied by none other than Wilson himself.⁶ If one seeks to comprehend the ideological origins of Article II and the scope of presidential power as they were conceived by the Constitution’s leading architects, then all these factors must be considered and given their due weight. Many leading studies of presidential power nonetheless ignore these considerations or devote scant attention to them.⁷

I. THE PATH OF THE PREROGATIVES FROM BLACKSTONE TO THE COMMITTEE OF DETAIL

This article seeks to shed new light on these issues and begin exploring some of the intriguing questions generated by them. A useful starting point is to focus on what I am calling the path of the prerogatives: the process by which the royal prerogatives outlined by William Blackstone in his Commentaries on the Laws of England and other legal authorities made their way into the Constitution. It is well known that Professor William Crosskey opened up a new window into the Constitution when he pointed out that many of the powers given to Congress in Article I had been prerogatives of the British Crown.⁸ In his illuminating new book, Professor Michael McConnell takes Crosskey’s observation as a starting point of his own more systematic analysis of how the Committee of Detail allocated these prerogative powers between Congress and the President.⁹ Yet neither Crosskey nor McConnell focuses much attention on the fact that many of these powers were already delegated to the United States by the Articles of Confederation.¹⁰ Nor do they squarely confront whether these powers, as the founders conceived them, first in the fateful years between 1774 and 1777, and then in the ensuing decade leading up to the Federal Convention, were legislative powers, executive powers, government powers, or something else.¹¹

Reading Crosskey and McConnell, one could be forgiven for assuming that the ‘main event’ in the origin of presidential powers centered on the link between Blackstone and the Committee of Detail. On this view, the key moment in the formation of both Articles I and II was the process by which this high-powered five-member committee, including three future Supreme Court Justices and the first US Attorney General, drew on the template supplied by Blackstone in Chapter 7 (‘Of the King’s Prerogative’) of Book I of the Commentaries. The image that comes to mind is of these five men, or perhaps just Wilson and John Rutledge, gathered together in Wilson’s Philadelphia home with Wilson’s copy of Blackstone on the table in front of them. Their pressing question is how to divide Blackstone’s list of prerogatives between Congress and the President. Bold and innovative in just the way McConnell describes, they set about creating a new and unprecedented political institution: the presidency of the United States.¹²

This image is captivating, yet it seems misleading for at least two basic reasons. First, most of the royal prerogatives outlined by Blackstone were already vested in the United States by the Articles of Confederation. Here is a reasonably complete list of them in the order in which they appear in Article IX.

Prerogatives in the Articles of Confederation (1777)

1. To determine on peace and war

2. To send and receive ambassadors

3. To enter into treaties and alliances

4. To make rules concerning captures on land and water

5. To make rules concerning prizes taken by land or naval forces

6. To grant letters of marque and reprisal

7. To appoint courts for trying piracies and felonies committed on the high seas

8. To appoint courts for deciding appeals in all cases of capture

9. To regulate the value of coin struck by the United States and the States

10. To fix the standards of weights and measures

11. To regulate all Indian affairs, including trade

12. To establish and regulate post offices

13. To appoint and commission military and civilian officers of the United States

14. To make rules for the government and regulation of land and naval forces

15. To spend money on behalf of the United States

16. To borrow money, or emit bills on the credit of the United States

17. To build and equip a navy

18. To supervise the raising and support of armies

Second, by the time the Committee of Detail came on the scene, the Virginia Plan had already proposed vesting these powers in new legislative and executive departments. Resolution 6 called for giving a National Legislature ‘the Legislative Rights vested in Congress by the Confederation’ as well as the power ‘to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation’.¹³ Resolution 7 called for creating a National Executive that would possess ‘the Executive rights vested in Congress by the Confederation’, along with ‘a general authority to execute the National laws’.¹⁴ Shortly before the Committee of Detail was formed in late July, a revised and expanded version of Resolution 6 was adopted by an 8-2 vote to include an even more capacious authority—in effect, the power to legislate on any matter affecting the general welfare.¹⁵ Meanwhile, after a series of critical debates in early June, Resolution 7 had been limited to only three powers: law execution, appointments, and the veto.¹⁶ Judging by its complex handiwork, it seems clear that granting the ‘Legislative Rights’ and ‘Executive Rights’ ‘vested … by the Confederation’ to a new Congress and President continued to inform how the Committee of Detail went about its business in late July and early August. Still, what precisely was encompassed by this pair of terms—‘Legislative Rights’ and ‘Executive Rights’—remains unclear.

The fact that so many prerogatives were already listed in the Articles of Confederation and that the Virginia Plan had called for vesting them in new legislative and executive bodies without clearly specifying which of them were ‘Legislative Rights’ and ‘Executive Rights’, respectively, complicates the story told by Crosskey and McConnell. One basic set of questions concerns how Wilson, Rutledge, and the other delegates understood Resolutions 6 and 7 when they were first unveiled as part of the Virginia Plan. For example, which powers were conceived to be legislative and executive powers at that point in time? Were the delegates of one mind on this issue? Or were some delegates, such as Wilson and Rutledge, already ahead of the curve or moving in new directions? As McConnell notes, we tend to think of most of these powers as quintessentially legislative powers because they are listed in Article 1, Section 8, and because their legislative character has shaped our constitutional history for over two centuries.¹⁷ The question I am highlighting is how these powers were conceived in May 1787—and also, for that matter, in July 1776, when many of them first appeared in the Articles of Confederation.¹⁸

At those junctures, were these powers generally understood to be legislative powers, executive powers, government powers, or something else? This is the first conceptual problem to which I alluded at the outset of this article. The basic issue can be recast in the following terms. It is well known that nearly half of the enumerated powers of Congress were once royal prerogatives.¹⁹ Did these powers become ‘legislative’ in the minds of the founders only when the Committee of Detail assigned them to Congress in their draft constitution? Or were these prerogatives already conceived to be legislative powers by this time because of their enumeration in the Articles of Confederation? Put differently, did Wilson, Rutledge, and their colleagues break new ground with their draft constitution, or was a new way of thinking about prerogatives—‘a new science of politics’,²⁰ if you will—more than a decade old by the time they got to work allocating these powers in the summer of 1787? Further, what should we make of the fact that the Articles of Confederation vests these powers in an entity called ‘the United States’, which many founders regarded as a legal corporation and new body politic? Does this imply that these powers were conceived as government powers, first and foremost, rather than (or in addition to) legislative or executive powers? For my part, I find it difficult to draw firm conclusions about the origins of Article II, its relationship to the precise text of the Necessary and Proper Clause, and other important design features of the Constitution without clear answers to these questions. Yet they appear to be generally neglected even in the best scholarship on these topics.

II. WILSON, FRANKLIN, DICKINSON, AND JEFFERSON

To appreciate the complexity of these issues, it is useful to recall some basic historical facts about the path of the prerogatives. First, all five members of the Committee of Detail had served in the Continental and/or Confederation Congresses and were intimately acquainted with the Articles of Confederation.²¹ They were well acquainted with Blackstone as well, to be sure, but by 1787 the more proximate source of these powers in their minds was almost certainly the Articles of Confederation, its drafting history, and its dismal track record as a governing charter for the United States. Second, all five members of the Committee of Detail were familiar with how the royal prerogatives had been transformed and weaponized in the intellectual battles surrounding the imperial crisis and the American Revolution. Wilson, in particular, was intimately connected with these events because he was, in fact, one of the principal actors in this ideological drama. So, too, were other delegates to the Second Continental Congress, including Benjamin Franklin, John Dickinson, and Thomas Jefferson. All of these men played critical roles in shaping what I am calling the path of the prerogatives. In what follows, I briefly discuss each of them in turn.

Wilson. The key theoretical move made by Wilson appears near the end of his 1774 pamphlet on the legislative authority of the British Parliament, which held that Parliament’s authority over the colonies must be denied ‘in every instance’.²² As Gordon Wood restates Wilson’s bold claim in this essay, ‘There was no middle ground: the colonists had to accept Parliament’s authority in all cases whatsoever, or deny Parliament’s authority in all cases whatsoever’.²³ Wilson famously denied this authority, yet he insisted this rejection did not entail that the colonies were independent from Great Britain. Rather, he argued that a legal relationship of colonial dependency remained intact and ran to the British Crown. Properly conceived, the colonies were legislatively independent, but constitutionally dependent, because they remained subject to the king’s executive authority.²⁴ The political bands connecting the colonies to Great Britain were thus tied to the royal prerogatives:

To the king is entrusted the direction and management of the great machine of government … He makes war: he concludes peace: he forms alliances: he directs domestic trade by his prerogative, and directs foreign commerce by his treaties with those nations, with whom it is carried on. He names the officers of government; so he can check every jarring movement in the administration. He has a negative on the different legislatures throughout his dominions, so that he can prevent any repugnancy in their different laws. The connection and harmony between Great Britain and us, which it is her interest and ours mutually to cultivate; and on which her prosperity, as well as ours, so materially depends; will be better preserved by the operation of the legal prerogatives of the Crown, than by the exertion of an unlimited authority by Parliament.²⁵

Wilson lists six core prerogatives in this passage: war, peace, alliances, commerce (foreign and domestic), appointments, and the royal negative (ie the legislative veto). His proximate source in this case was undoubtedly Blackstone, who discusses these same prerogatives in a similar order in his Commentaries.²⁶ The theoretical significance of Wilson’s argument here in relation to British constitutional history has been ably explored by many scholars, including Randolph Adams, Carl Becker, Alison LaCroix, and Eric Nelson.²⁷ In what follows, I wish to focus instead on what happened next in the path of the prerogatives.

Wilson’s essay was published in Philadelphia by William and Thomas Bradford around September 28, 1774, the third in a series of influential pamphlets published in the summer and early fall of 1774 that helped shape the activities of the First Continental Congress and other key events during the ‘Long Year of Revolution’.²⁸ The other two were John Dickinson’s Essay on the Constitutional Power of Great-Britain over the Colonies in America and Thomas Jefferson’s Summary View of the Rights of British America.²⁹ Unlike Dickinson’s and Jefferson’s essays, Wilson’s essay was initially credited to someone other than its author because of a misleading advertisement in James Rivington’s New-York Gazetteer, which attributed the essay to Benjamin Franklin.³⁰ Rivington’s error crossed the Atlantic and caused many influential Britons, including Lord Mansfield, Josiah Tucker, John Lind, and Edmund Burke, to engage with the substance of Wilson’s essay in a way they might not have, if they knew it had been published by an obscure Scottish immigrant to America, who was barely 32 years old at the time.³¹

For our purposes, Wilson’s essay differed from Dickinson’s and Jefferson’s pamphlets in another, more important respect: it alone focused intently on the constitutional significance of the royal prerogatives in the imperial crisis then engulfing the Atlantic world. Wilson’s key insight was that there were other powers besides the legislative authorities vested in Parliament that bound together the different components of the British empire. In a word, those other powers were the King’s prerogatives. On Wilson’s view, the colonists were every bit as entitled to their protection and advantages, and every bit as subject to the King’s authority in this regard, as their British brethren. A full-throated embrace of the principle, ‘No legislation without representation’, therefore, did not entail a break with the mother country.

Here it seems useful to recall that Wilson was one of the few prominent founders who was born and grew to adulthood in Great Britain. Accordingly, when he vigorously challenged the authority of Parliament by demanding answers to questions like these, Wilson probably was thinking about himself in the first instance:

Have they a natural right to make laws, by which we may be deprived our properties, of our liberties, of our lives? By what title do they claim to be our masters? What act of ours has rendered us subject to those, to whom we were formerly equal? Is British Freedom denominated from the soil, or from the People of Britain? If from the latter, do they lose it by quitting the soil? Do those, who embark, freemen, in Great Britain, disembark, slaves, in America? Are those, who fled from the oppression of regal and ministerial tyranny, now reduced to a state of vassalage to those, who, then, equally felt the same oppression? Whence proceeds this fatal change … ?³²

These questions applied broadly, but they also impacted Wilson personally. He had quit the British soil and embarked for America as a free man in the summer of 1765. When he landed in New York a few weeks later, just shy of his twenty-third birthday, had he lost this freedom or any of his birthright privileges or immunities as his majesty’s loyal subject? On whose authority and why? Wilson also left behind two younger brothers in Great Britain, so his essay’s pointed reference to our ‘brethren in Britain’ (plausibly one source of Jefferson’s phrase, ‘our British brethren’, in the Declaration of Independence) were quite literal, as well as figurative, for him.³³ The break with Great Britain was personal for Wilson in a way that only a few other prominent men serving in Congress during the American Revolution could fully appreciate.³⁴

Franklin. Wilson’s penetrating use of the prerogatives to illustrate the nature of the British constitution helped set in motion a series of events that shaped how both the Declaration of Independence and the Articles of Confederation were eventually drafted. It was Franklin who took the next step. On July 21, 1775, only a few months after returning to Philadelphia after 10 eventful years in London, Franklin presented a plan of confederation to Congress. Franklin’s ‘Articles of Confederation and perpetual Union’, which was never formally considered, but undoubtedly influenced later developments, called for extending the powers of the ‘United Colonies of North America’ to making war and peace, sending and receiving ambassadors, entering into foreign alliances, settling disputes between colonies, and forming new colonies.³⁵ In addition, Franklin’s plan vested Congress with a broad power to legislate for the general welfare, including matters relating to commerce, currency, a postal system, and military affairs, along with a general appointment power.³⁶

The alert reader will recognize that these proposals closely tracked and expanded upon the royal prerogatives Wilson had invoked in Considerations. In effect, Franklin’s plan included all but one of these prerogatives (the veto), collapsed the two branches of commerce Wilson had distinguished into one, and added several new areas of jurisdiction, all likely taken directly or indirectly from Blackstone: ambassadors, currency, a postal system, and regulation of armed forces. Elsewhere in his plan, Franklin proposed vesting Congress with authority over disputes between colonies, new colonies, and Indian affairs. The result was a list of specific powers that effectively doubled the list of authorities that Wilson had highlighted in Considerations.

Prerogatives in Franklin’s Plan for Confederation (1775)

1. War

2. Peace

3. Alliances

4. Commerce

5. Appointments

6. Ambassadors

7. Currency

8. Postal System

9. Armed Forces

10. Disputes between Colonies

11. New Colonies

12. Indian Affairs

Franklin was intimately familiar with Wilson’s essay and publicly disclaimed authoring it.³⁷ Yet his list of proposed congressional powers evidently built on Wilson’s prior list of prerogatives. As we shall see, Franklin’s list also anticipated the powers that Dickinson outlined one year later in his drafts of the Articles of Confederation. Franklin thus made a significant contribution to the drafting of the Articles that has not been fully appreciated and warrants more attention.³⁸

Dickinson. Like Wilson and Franklin, Dickinson knew his Blackstone. It is not surprising, then, to discover that when he was tasked with enumerating the powers that Congress ought to possess for a 13-member committee in June 1776, Dickinson turned to the Commentaries for assistance. Eight decades ago, Merrill Jensen noted that the powers in Dickinson’s plan for confederation form ‘a remarkable list’, especially ‘when one considers that this was the first earnest attempt to bring all the states together into some form of union and that the war was, in one sense, a revolt against centralization’.³⁹ What Jensen did not realize, or at least neglected to mention, was that Dickinson’s list of powers was deeply indebted to Blackstone.

For example, whereas Wilson had highlighted war, peace, and alliances, and Franklin had added sending and receiving ambassadors, Dickinson supplemented Wilson’s and Franklin’s lists of foreign affairs powers with three more royal prerogatives taken from Blackstone: commissioning commanders of war vessels, granting letters of marque and reprisal, and making rules concerning captures on land and water. Likewise, whereas Wilson had distinguished two broad types of commerce (foreign and domestic), and Franklin had referred merely to ‘our general Commerce’ and listed ‘general Currency’ as one illustration of this power, Dickinson took the next step of copying Blackstone’s references to specific commercial powers of the Crown, such as fixing a standard of weights and measures, coining money, regulating its value, and regulating the value of foreign coin, into his draft plan. Finally, whereas Wilson and Franklin had ignored the royal power to create tribunals, Dickinson drew on Blackstone to vest Congress with the power to establish courts to adjudicate crimes, frauds, and piracies on the high seas, along with appeals in maritime cases. The net result of these additions was a more elaborate enumeration of congressional powers, which any informed reader at the time would have recognized was heavily indebted to Blackstone:

The Congress shall have the sole and exclusive Power & Right of determining on War and Peace, establishing Rules for deciding what Captures by Land or Water shall be legal and in what Manner Prizes shall be divided & appropriated; granting Commissions to the Commanders of Ships or Vessels of War, & Letters of Marque and Reprisal; establishing and regulating Courts for the Trial of all Crimes, Frauds & piracies on the High Seas, & for receiving and determining finally Appeals in all maritime Causes, sending and receiving Ambassadors under any Character; entering into Treaties & Alliances; settling all Disputes and Differences now subsisting or that hereafter may arise between two or more Colonies concerning Boundaries, Jurisdictions, or any other Cause whatever; establishing a sameness of Weights & Measures throughout all the united Colonies; coining Money and regulating the Value thereof; superintending all Indian Affairs, & regulating all Trade with those Nations; assigning Territories for new Colonies either in Lands to be separated from Colonies the words of whose Charters extend to the South Sea, or from the Colony of New York, heretofore purchased by the Crown, or Lands hereafter to be purchased from the Indians, & selling all such Lands for the general Benefit and advantage of all the united Colonies, ascertaining convenient and moderate Boundaries to such new Colonies, and giving proper Forms of Government to the Inhabitants within them upon the Principles of Liberty; and establishing and regulating Post-Offices throughout all the united Colonies.⁴⁰

Edward Rutledge famously said that Dickinson’s draft of the Articles of Confederation had ‘the Vice of all his Productions to a considerable Degree; I mean the Vice of Refining too much’.⁴¹ Whatever the merits of Rutledge’s criticism in general, it does seem to be a fair description of some of the revisions Dickinson and other members of his committee made to his sketch of congressional powers, which was first composed on or around June 17, 1776. The final version of Dickinson’s plan, submitted to Congress on July 12, differed from the earlier draft in various ways, many of which are subtle, and some of which seem unnecessary. Still, Dickinson’s basic enumeration of congressional powers remained substantially unchanged and was replete with royal prerogatives. Rearranging these powers in a way that clearly brings out their debt to Blackstone, as well as the contributions of Wilson and Franklin, the list of powers in Article XVIII of Dickinson’s July 12 draft can be encapsulated in the following outline:

Prerogatives in Dickinson’s Plan for Confederation (1776)

1. [Foreign Affairs]

   • War

   • Peace

   • Alliances

   • Ambassadors

   • Letters of Marque and Reprisal

   • Rules concerning captures on land and water, and prizes

2. [Domestic Affairs]

   • Royal Negative

   • [Military Affairs]

     • Raising and regulating fleets and armies

     • Granting commissions to commanders of ships and war vessels

   • [Justice and Peace]

     • Establishing courts for the trial of crimes, frauds, and piracies

     • Establishing courts for determining appeals in maritime causes

   • [Honors, Offices, and Privileges]

     • Appointments of officers

   • [Commerce]

     • Standard of Weights and Measures

     • [Currency]

       1. Coining Money

       2. Fixing the Value of Coin

       3. Fixing the Value of Foreign Coin

3. [Other Prerogatives]

   • Postal System

   • Disputes between Colonies

   • New Colonies

   • Indian Affairs

In this outline, the first two numbered items of which track the structure of Book I, Chapter 7 of Blackstone’s Commentaries, the powers identified by Wilson in Considerations are rendered in bold, while those listed by Franklin in his plan for confederation are italicized. The other powers listed in the outline are those enumerated by Dickinson in his July 12 draft. Although not represented here, it is important to note that two critical features of the Constitution—disabling the United States from exercising certain prerogatives, and denying the States any share in the exercise of others—began with Dickinson. His fourth article, for example, prohibited the United States from granting titles of nobility, as well as federal and state officials from accepting any ‘Present, Emolument, Office, or Title of any Kind whatever, from the King or Kingdom of Great-Britain, or any foreign Prince or State’⁴²—the forerunner of the Constitution’s Foreign Emoluments Clause.⁴³ In addition, the individual States were forbidden inter alia from sending ambassadors, entering into any treaty or other agreement with foreign governments, waging war, commissioning war vessels, or granting letters of marque and reprisal without the consent of the United States.⁴⁴

Jefferson. At the same time as Dickinson’s 13-member committee was formulating a plan for confederation, another five-member committee in Congress was drafting the Declaration of Independence. The primary author of that draft, Thomas Jefferson, took the final step in the path of the prerogatives that began with Blackstone, took a new turn with Wilson, and then ran through Franklin and Dickinson. In the dramatic climax of the Declaration, Jefferson announced that:

We, therefore, the Representatives of the UNITED STATES OF AMERICA, in General Congress, Assembled, appealing to the Supreme Judge of the World for the Rectitude of our Intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly Publish and Declare, That these United Colonies are, and of Right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all Allegiance to the British Crown and that all political Connection between them and the State of Great Britain, is and ought to be totally dissolved; and that, as FREE AND INDEPENDENT STATES, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which INDEPENDENT STATES may of right do. And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.⁴⁵

For our purposes, the key language in this famous passage is Jefferson’s assertion that, as free and independent states, the United States have full power:

to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which INDEPENDENT STATES may of right do.⁴⁶

The precise sequence of powers (war, peace, alliances, commerce), the steady drumbeat of verb-object couplets, and the specific pairing in one of them (‘conclude peace’) so closely match Wilson’s recital of royal prerogatives in Considerations as to make Jefferson’s debt to Wilson seem clear and convincing:

He makes war: he concludes peace: he forms alliances: he directs domestic trade by his prerogative, and directs foreign commerce by his treaties with those nations, with whom it is carried on.⁴⁷

For decades, historians have debated the origins of the famous ‘self-evident truths’ passage in the Declaration of Independence and, in particular, whether Jefferson was indebted to Wilson or George Mason (or both) for its core ideas and vocabulary.⁴⁸ As the novel comparison I have just drawn indicates, the strongest evidence that Jefferson composed the Declaration of Independence with Wilson’s essay in mind, or perhaps near at hand, may not be how the Declaration begins, but how it ends.⁴⁹ To recognize Jefferson’s debt to Wilson in this respect merely as a means of further elevating Wilson into the pantheon of most significant founders where he arguably belongs, however, would be to miss the broader point of the comparison. For our topic, the most interesting fact about the Declaration’s dramatic conclusion is not its connection to Wilson, but its connection to Blackstone.

III. THE NATIONALIST PERSPECTIVE

The four powers enumerated in the final paragraph of the Declaration of Independence—War, Peace, Alliances, Commerce—were all identified by Blackstone as royal prerogatives. They previously belonged to the Crown, but the Declaration asserts they now belong to the United States, along with the power to do ‘all other acts and things that independent states may of right do’.⁵⁰ A common reading of this passage assumes that these powers were possessed by each state individually. On this view, the Declaration produced 13 independent states, each of which was free, independent, and vested with these prerogatives.⁵¹ This was not Wilson’s view, however, and it probably wasn’t Franklin’s, Dickinson’s, or Jefferson’s view at the time, either. On Wilson’s understanding, at least, the Declaration also produced a new, undivided nation.⁵² Accordingly, when the former colonies became independent, they were vested with these powers ‘not Individually, but Unitedly’⁵³—that is, as a single, corporate body: the United States of America.

This nationalist perspective on the Declaration was reflected in many aspects of early American political history that are easy to forget, overlook, or minimize. For example, it is important to recall that at the very moment Jefferson declared that these prerogative powers were vested in the United States, Dickinson made clear in his draft of the Articles of Confederation that these powers were not held by the individual States.⁵⁴ The Declaration and the Articles worked hand in hand in this respect, and there seems to be no compelling evidence that any delegate seriously dissented on this issue. Members of Congress disagreed on other matters, most famously slavery, representation, taxation, and western lands, but not on whether the individual States could legitimately exercise collective powers over war, peace, alliances, or interstate commerce.⁵⁵

Eleven years later, Rufus King emphasized this point when he observed that terms like ‘States’, ‘sovereignty’, ‘national’, and ‘federal’ were often used in inaccurate and misleading ways because the States had never been fully sovereign or independent in the sense claimed by some delegates to the Federal Convention. Unlike the United States, King noted, the individual States ‘could not make war, nor peace, nor alliances, nor treaties’. As ‘political Beings’, he added, the States were ‘dumb, for they could not speak to any for[e]ign Sovereign whatever’. They were also ‘deaf, for they could not hear any propositions’ from these foreign nations.⁵⁶ By contrast, Congress exercised broad sovereignty during the Revolution that flowed from the conception of the United States as a unified corporate body, vested with all the powers of any other nation. For example, it commissioned a continental army and placed George Washington at its head. It borrowed money, formed treaties, issued national passports, and determined prizes on behalf of the United States. It defined treason against the United States. In all these respects, the United States acted not just as a confederation of separate colonies or States, but as ‘an INDEPENDENT NATION’, as Alexander Hamilton boldly framed the essential point in his first Continentalist essay in 1781.⁵⁷

When the new Constitution began circulating in newspapers throughout the country, its robust nationalism was readily apparent to close observers of American politics, critics and supporters alike. ‘I confess, as I enter the Building I stumble at the Threshold’, Samuel Adams wrote to Richard Henry Lee in December, 1787. ‘I meet with a National Government, instead of a foederal Union of Sovereign States.’ In making this famous remark, Adams recognized that, on its face, the Constitution implied that the United States was ‘one entire Nation,’ whose legislature was capable of addressing ‘every subject of Legislation.’⁵⁸

Similar ideas dominated early interpretations of the Constitution. During the campaign to ratify the Constitution, for example, John Jay affirmed that the indispensable goal of the Convention, reflected in its final product, was ‘a national government, competent to every national object.’⁵⁹ Likewise, in a little-known draft opinion written in 1794, Justice William Paterson observed that the Constitution was ‘an instrument of a very different texture’ than the Articles of Confederation. Unlike the latter, the nationalist character of the former was unmistakable in light of its preamble:

It must be agreed, that the United States, under the existing const[itution], form a complete, sovereign, and independent nation, to which the rights of sovereigns and the law of nations attach. The great and characteristic properties of a nation, such as raising armies, fitting out navies, conducting military operations by land and sea, coining money, receiving and sending ambassadors, entering into treaties, and making war and peace, have been deposited by the people in the general government. The United States, and not the states individually, possess these high and eminent powers, which enter into the very essence of national character, dignity, and sovereignty. What is a nation? Rutherforth, Vattel, and other writers concur in defining a nation to be a body politic, or society of men associated for the purpose of promoting their common safety, common interests, common rights, and common welfare. What is the language of the constitution? ‘We, the people of the U. States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this const. for the United States.’ A more minute, detailed, and perfect description of a nation can not be exhibited to our view. The enumeration is complete, and embraces all the great objects of national association.⁶⁰

The following year, Paterson drew on this language and reinforced the same theme in his opinion in Penhallow v Doane’s Administrators, recalling that during the Revolution:

Congress raised armies, fitted out a navy, and prescribed rules for their government: Congress conducted all military operations both by land and sea: Congress emitted bills of credit, received and sent ambassadors, and made treaties: Congress commissioned privateers to cruise against the enemy, directed what vessels should be liable to capture, and prescribed rules for the distribution of prizes. These high acts of sovereignty were submitted to, acquiesced in, and approved of, by the people of America. In Congress were vested, because by Congress were exercised with the approbation of the people, the rights and powers of war and peace.⁶¹

Twelve decades later, a similar view of national powers was reaffirmed by future Justice George Sutherland in his book, Constitutional Power and World Affairs. Echoing Paterson and anticipating his own opinion in United States v. Curtiss-Wright Corp., Sutherland noted that nationality was inherent in the United States from the very origins of the Republic in 1776:

The second Congress … raised an army, provided a currency, created a navy, organized a treasury and post-office, and finally adopted the Declaration of Independence. Nationality was inherent from the beginning. The sovereign Nation and the independent states, conceived at the same time, were born together. By the Declaration of Independence the colonies did not sever their connection with Great Britain as separate colonies but as the United States of America, and they declared not the several but the united colonies to be free and independent states—not Massachusetts, not New York, not Virginia, separately, but all combined and united. Together, and not separately, they waged war; together they made peace; and together they entered the family of nations not as thirteen distinct sovereignties but as one sovereign Nation. The several states never exercised the powers of external sovereignty; they were never recognized by any foreign government; they never possessed the attributes of nationality.⁶²

Significantly, Sutherland characterized the prerogative powers identified in this revealing passage as ‘The Powers of the National Government’.⁶³ They were not primarily legislative or executive powers, in other words, but government powers: ‘acts and things’ any nation was entitled to do under the law of nations.⁶⁴ Finally, Wilson characterized implied powers in much the same way in 1785, when he explained that for ‘many purposes, the United States are to be considered as one undivided, independent nation; and as possessed of all the rights, and powers, and properties, by the law of nations incident to such’.⁶⁵ Consequently, the United States had ‘general rights, general powers, and general obligations, not derived from any particular states, nor from all the particular states, taken separately; but resulting from the union of the whole’—including authority to regulate any matters beyond the competence of the individual states.⁶⁶ Concretely, this meant that whether the United States had the power to purchase or regulate new territories or establish a national bank were easy questions for Wilson: of course the national government possessed these powers. The precise language of the Necessary and Proper Clause, which refers to ‘other powers vested by this Constitution in the Government of the United States’ over and above those powers vested in Congress, the President, or other Departments or Officers of the United States, cannot be properly understood without coming to grips with all these nationalist ideas.

IV. THE CORPORATE PERSPECTIVE

If one legal basis for the acts undertaken by the United States during the Revolution was the law of nations, another was the law of corporations.⁶⁷ Perhaps the earliest affirmation of this ground was supplied by Chief Justice Thomas McKean of the Pennsylvania Supreme Court in Respublica v Sweers, a case in which a defendant accused of defrauding the United States argued that at the time of the offense ‘the United States were not a body corporate known in law’ and thus could not have been injured by his acts. Rejecting this argument, McKean held that ‘from the moment of their association, the United States necessarily became a body corporate; for there was no superior from whom that character could otherwise be derived’. McKean then added: ‘In England, the kind, lords, and commons are certainly a body corporate; and yet there never was any charter or statute, by which they were expressly so created.’⁶⁸

McKean’s conception of the United States as a legal corporation was shared by many the era’s most capable lawyers and jurists, including Wilson, Hamilton, Fisher Ames, William Cushing, James Iredell, John Marshall, and Roger Sherman.⁶⁹ McKean and Sherman were members of the Second Continental Congress, who signed the Declaration of Independence on behalf of Delaware and Connecticut, respectively. Like Wilson, Dickinson, and other legally sophisticated delegates, they likely recognized that the clause with which Jefferson ended his list of enumerated powers in the Declaration—‘and do all other acts and things that independent States may of right do’—was another device taken from Blackstone. In this case, the source was not Blackstone’s chapter on royal prerogatives, but his chapter on corporations. In explaining the powers that are tacitly incident to any corporation, Blackstone observed that one set of such powers was ‘to sue and be sued, implead or be impleaded, grant or receive, by its corporate name, and do all other acts as natural persons may’.⁷⁰ Jefferson probably borrowed this language from Blackstone when he ended his list of enumerated powers in the Declaration with his own version of this sweeping clause. Wilson likely did the same thing when he helped draft this provision in the charter of the Bank of North America in 1781:

And be it further ordained, That the said corporation be, and shall be for ever hereafter, able and capable in law to sue and be sued, plead and be impleaded, answer and be answered unto, defend and be defended … and to do and execute all and singular other matters and things, that to them shall or may appertain to do.⁷¹

In the founding period, sweeping clauses of the ‘and all other’ variety were not only ubiquitous features of corporate charters, but also of treaties, statutes, constitutions, and other legal instruments.⁷² The Delaware, Pennsylvania, and Vermont constitutions adopted in the aftermath of the break with Great Britain patterned their own sweeping clauses on the one in the Declaration.⁷³ Likewise, Wilson probably drew directly or indirectly upon the same template from Blackstone when he fashioned the ‘all other powers’ provision of the Necessary and Proper Clause.⁷⁴

Yet this was hardly the only trace of Blackstone’s analysis of corporations in Wilson’s drafts for the Committee of Detail. Among the most telling signs of Blackstone’s influence on Wilson are those related to the Preamble of the Constitution. Because he knew from Blackstone and other authorities that every corporation must be given a name and that ‘by that name alone it must sue, and be sued, and do all legal acts’,⁷⁵ the very first thing Wilson did when he began drafting the Preamble was to affirm the corporate existence of the United States by assigning that body a legal name:

The People of the States of New Hampshire &C do agree upon ordain and establish the following Frame of Government as the Constitution of the ‘United States of America’ according to which we and our Posterity shall be governed under the Name and Stile of the ‘United States of America’.⁷⁶

In his next draft, Wilson not only added ‘We’ to this statement, thereby crafting for the first time the Constitution’s most famous phrase: ‘We the People’. He also added a clause meant to confirm that the United States would continue to be known by its existing corporate name:

We the People of the States of New Hampshire &C, known by the Stile of the ‘United States of America’, do ordain declare and establish the following Constitution of the said United States.⁷⁷

In fact, when one looks closely at all of his committee drafts, it becomes clear that Wilson’s preoccupation with the corporate status of the United States bordered on obsession. In his next draft, for instance, Wilson amplified this status by using the phrase, ‘already confederated united and known by the stile of the “United States of America”’, instead of simply referring to that name being ‘known’.⁷⁸ And in each subsequent draft, he continued to assign a ‘style’ to the United States in line with the standard procedure for naming corporations. Probably for strategic reasons, however, Wilson ultimately decided to pattern his draft more closely on the Articles of Confederation, which led in turn to moving this act of naming to a separate article. Wilson’s first such revision resulted in an awkward opening to his preamble— ‘We the People and States of New Hampshire [etc.]’—and in a new corporate name: ‘United People and States of America’.⁷⁹ Subsequently, he reverted to the more familiar name, ‘United States of America’, in line with its use in the Declaration of Independence and Articles of Confederation. As a result, Wilson revised his draft yet again, this time resulting in a new preamble and first article that were almost identical to those that appeared in the Committee of Detail’s 6 August draft:

We the People of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New. York, New. Jersey, Pennsylvania, Delaware, Maryland, Virginia, North. Carolina, South. Carolina and Georgia do ordain, declare and establish the following Constitution for the Government of ourselves and of our Posterity.

I.

The stile of this Government shall be ‘the United States of America’.⁸⁰

The Committee of Style eventually deleted this first article, making the final version of the Constitution read less overtly like a corporate charter. Yet there seems little doubt that many of the most legally sophisticated founders understood that the Constitution was a corporate charter, or at least more analogous to a corporate charter than to any other type of legal instrument. During the Convention, for example, both Edmund Randolph and Charles Pinckney called for assigning the United States a corporate name,⁸¹ and, at one point Pinckney proposed adding a clause to the Constitution stating that the United States ‘shall be forever considered as one Body corporate and politic in law, and entitled to all the rights, privileges, and immunities, which to Bodies corporate do or ought to appertain’.⁸² In his State House Yard speech, Wilson referred to the Constitution as ‘nothing more than a formal act of incorporation’.⁸³ Likewise, in the First Congress, both Roger Sherman and Fisher Ames repeatedly referred to the United States as a corporation and invoked its corporate powers to address constitutional issues.⁸⁴ In a draft of his Bank Opinion, Hamilton characterized the Government of the United States as ‘a Corporation which can itself create other corporations’.⁸⁵ In Chisholm v Georgia, both Justice Iredell and Justice Cushing identified the United States as a corporation.⁸⁶ Finally, in a pair of circuit cases decided in 1811 and 1823, John Marshall left little room for doubt on the matter. In the first case, Dixon v United States, Marshall wrote:

The United States of America will be admitted to be a corporation. But it is incidental to a corporation to sue and be sued, to convey and to take property … . ‘The United States of America’ is the true name of that grand corporation which the American people have formed, and the charter will, I trust, long remain in full force and vigor.⁸⁷

Twelve years later, in United States v Maurice, Marshall observed:

The United States is a government, and consequently a body politic and corporate, capable of attaining the objects for which it was created, by the means which are necessary for their attainment. This great corporation was ordained and established by the American people, and endowed by them with great powers for important purposes.⁸⁸

V. LESSONS AND IMPLICATIONS

What lessons should one draw from the path of the prerogatives, the distinction between executive and government powers, and the status of the United States as a legal corporation? Many important consequences appear to flow from these considerations. Here I will focus on three provisional conclusions, all of which have significant implications for the separation of powers.

First, it seems clear that the process by which Blackstone’s account of royal prerogatives influenced the Committee of Detail was mediated by a host of important events and ideological transformations that cannot be ignored if one is to grasp how Wilson, Rutledge, and their colleagues decided to vest some, but not all, of these powers in the various Departments and Officers of the United States. In particular, the path of the prerogatives was not a process by which all of the powers that once belonged to the British Crown were transferred to new legislative, executive, and judicial authorities in the federal government, or simply denied to the government altogether in 1787. Rather, that process was one in which many, but not all, of those powers were first assigned to the Government of the United States itself in 1776, and only later was a proper subset of these powers vested by the Constitution in the new Departments and Officers of that government.

To adopt a metaphor from generative linguistics, the primary ‘rewrite rule’ was not ‘Prerogative Power (royal) → Executive Power (presidential)’ or ‘Prerogative Power (royal) → Legislative Power (congressional)’ but ‘Prerogative Power (royal) → Government Power (national)’. The allocation of powers to Congress and the President occurred only after this first step, by means of two secondary rules: ‘Government Power (national) → Executive Power (presidential)’ and ‘Government Power (national) → Legislative Power (congressional)’.⁸⁹ Furthermore, there seems to be no compelling reason to conclude that all of the powers vested in the Government of the United States in 1776 or 1781 were expressly delegated to Congress, the President, or other Departments or Officers of the United States (including the Supreme Court and any other federal courts created by Congress) in 1787. On the contrary, the best reading of the record suggests that some powers were vested in these Departments or Officers implicitly, while others were not given to them at all, because the Constitution also vested implied powers in the Government of the United States itself, as a separate legal entity, distinct from its Departments or Officers.

As I have outlined elsewhere, this category of ‘residual’ government power plausibly includes, but is not limited to, all of the powers to which any nation would be entitled under the law of nations; all of the powers that Blackstone and other authorities had explained were tacitly possessed by any legal corporation; the power to regulate all issues touching upon the general interests or harmony of the United States, or that lay beyond the competence of the individual States; and the power to fulfill all the purposes for which the Government of the United States was formed, including, but not limited to, those ends enumerated in the Preamble and General Welfare Clause.⁹⁰ That expansive interpretation of the Constitution helps to explain not only many important cases involving national sovereignty,⁹¹ but also why Congress can plausibly legislate directly for the common defense and general welfare, as Franklin Delano Roosevelt famously maintained to justify the New Deal.⁹²

Second, all of these considerations, and the distinction between executive power and government power in particular, suggest that many inferences and modes of reasoning that have shaped the growth of presidential power over the past 235 years may rest on shaky intellectual foundations and deserve to be reexamined. Consider, for example, the ‘process of elimination’ formula that lies at the heart of many separation of powers arguments. According to this way of thinking, one begins by identifying all of the legislative and judicial powers of the federal government and then infers that any remaining government powers must belong to the President. One can find versions of this logic in many classic presidential powers cases, along with influential scholarship.⁹³ Yet the argument appears to rest on a fallacy, insofar as it mistakenly assumes that all of the implied powers vested by the Constitution in the Government of the United States can be divided into three mutually exclusive and jointly exhaustive categories.

The locus classicus of this fallacy is Hamilton’s first Pacificus essay, which begins by asserting that foreign affairs powers are unquestionably vested in the Government of the United States as a whole,⁹⁴ then asks which Department is authorized to declare the nation’s neutrality,⁹⁵ next contends that this power is vested neither in the legislative nor judicial departments,⁹⁶ before concluding, by process of elimination, that the power must therefore be vested in the executive department.⁹⁷ Hamilton’s argument for presidential authority here may be sensible from a practical standpoint, but his reasoning is unsound, because the Constitution vests implied powers in the Government of the United States that are not identical or coextensive with the powers vested in the Departments or Officers of the United States. The process of elimination argument works only if no such ‘other powers’ exist in the national government. Moreover, the Necessary and Proper Clause tells us that Congress is the branch authorized to carry into execution any such residual government powers, not the President alone, acting without legal authorization. Perhaps because he was performing the role of a clever and committed executive branch lawyer in this context, Hamilton conveniently ignored these factors.

Third, all of the foregoing considerations, and particularly the status of the United States as a legal corporation, suggest that the enumerated powers doctrine itself also warrants more skepticism. The popular claim that the United States Government is ‘a government of limited and enumerated powers’ is not justified by any sound grasp of how the Constitution was actually framed and ratified. To the best of my knowledge, the claim was first made in precisely this form by James Madison in his February 2, 1791 speech in the House of Representatives on the First Bank of the United States.⁹⁸ Madison’s argument was squarely rejected by a substantial majority of Congress, many of whom pointed out that the Constitution vests implied powers in the Government of the United States that go beyond its enumerated powers. Although the bank bill was adopted by a nearly 2-1 margin in the House—a vote that was almost entirely sectional—Madison’s slogan not only survived, but thrived. Today it continues to have an extraordinary impact on American constitutional law, scholarship, and pedagogy.⁹⁹

Yet the implied corporate powers of the United States alone seem to demonstrate that Madison’s slogan is misleading at best. The Government of the United States indisputably has the power to own property, enter into contracts, sue and be sued, and operate under a common seal, none of which is enumerated in the Constitution, although at least some of them may be presupposed by specific clauses. Once one recognizes this fact, it is only a relatively short step to the conclusion that the Government of the United States has the implied power to do all other acts and things any corporation can ordinarily do as a matter of course, such as enact by-laws, remove its officers, and fulfill all of the ends for which the corporation was formed. The removal authority may be the most significant of these other powers for our purposes, and here again the earliest controversies are quite revealing. In the debates over the removal power in the First Congress, virtually every member of the House of Representatives recognized that the removal power existed somewhere in the federal government.¹⁰⁰ Elbridge Gerry, for example, explained that the debate boiled down to two simple questions: ‘first, whether the sovereignty of the union has delegated to the government the power of removal? And the second, to whom?’¹⁰¹ Moreover, several House members characterized the removal authority as a power vested primarily in the Government of the United States itself, rather than in one of its Departments or Officers.¹⁰² This view is consistent with how removal was generally understood at the time in the law of corporations.¹⁰³ It also is reflected in the various corporate charters that Wilson drafted before 1787, none of which expressly granted a power of removal. If the removal power is an implied power vested in the Government of the United States, then, once again, the Necessary and Proper Clause tells us that Congress is the body authorized to pass laws to carry that power into effect. This appears to be how many proponents of the ‘Congressional Delegation’ perspective on the removal issue may have understood the basis of their position in 1789, together with many other important figures in American history.¹⁰⁴

Stepping back from the details of these particular controversies, one might ask: did Wilson and the other principal framers of the Constitution presuppose the existence of implied government powers and draft that instrument accordingly? The evidence is not unequivocal, but on balance it seems likely that they did. If this is correct, then not only the nature of presidential powers, but many other areas of constitutional law, may require serious rethinking. To paraphrase two leading constitutional scholars: we may need to wipe the slate clean and start over.¹⁰⁵

This article was initially prepared for a conference on histories of presidential power organized by the Stanford Constitutional Law Center on May 20–21, 2022. Some parts of the article draw upon my previous writings and a book manuscript on James Wilson, tentatively entitled: ‘The Man Who Wrote “We the People”: James Wilson and the Creation of the United States’. Thanks to Michael McConnell, Jed Shugerman, and Morgan Weiland for their work in organizing the conference and to Bill Ewald, Jonathan Gienapp, Sally Hadden, Mark David Hall, Andrew Kent, Maeva Marcus, Eric Nelson, Yvonne Pitts, Jack Rakove, and an anonymous reviewer for their feedback on a previous draft.

Footnotes