Opinion on the Powers of the Senate Respecting Diplomatic Appointments, 24 April 1790

Jefferson's Opinion on the Powers of the Senate Respecting Diplomatic Appointments

The Constitution having declared that the President ‘shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors other public ministers and consuls' the President desires my opinion Whether the Senate has a right to negative the grade he may think it expedient to use in a foreign mission, as well as the person to be appointed?1

I think the Senate has no right to negative the grade.

The Constitution has divided the powers of government into three branches, Legislative, Executive and Judiciary, lodging each with a distinct magistracy. The Legislative it has given completely to the Senate and House of representatives: it has declared that ‘the Executive powers shall be vested in the President,’ submitting only special articles of it to a negative by the Senate; and it has vested the Judiciary power in the courts of justice, with certain exceptions also in favor of the Senate.2

The transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly. The Constitution itself indeed has taken care to circumscribe this one within very strict limits: for it gives the nomination of the foreign Agent to the President, the appointment to him and the Senate jointly, the commissioning to the President. This analysis calls our attention to the strict import of each term. To nominate must be to propose: appointment seems that act of the will which constitutes or makes the3 Agent: and the Commission is the public evidence of it. But there are still other acts previous to these, not specially enumerated in the Constitution;4 to wit 1. the destination of a mission to the particular country where the public service calls for it: and 2. the character, or grade to be employed in it. The natural order of all these is 1. destination. 2. grade. 3. nomination. 4. appointment. 5. commission. If appointment does not comprehend the neighboring acts of nomination, or commission, (and the constitution says it shall not, by giving them exclusively to the President) still less can it pretend to comprehend those previous and more remote of destination and grade. The Constitution, analysing the three last, shews they do not comprehend the two first. The 4th. is the only one it submits to the Senate, shaping it into a right5 to say that ‘A. or B. is unfit to be appointed.’ Now this cannot comprehend a right to say that ‘A. or B. is indeed fit to be appointed,6 but the grade fixed on is not the fit one to employ,’ or ‘our connections with the country of his destination are not such as to call for any mission.’ The Senate is7 not supposed by the Constitution to be acquainted with the concerns8 of the Executive department. It was not intended that these should be communicated to them; nor can they therefore be qualified to judge of the necessity which calls for a mission to any particular place, or of the particular grade, more or less marked, which special and secret circumstances may call for. All this is left to the President. They are only to see that no unfit person be employed.

It may be objected that the Senate may, by continual negatives on the person, do what amounts to a negative on the grade; and so indirectly defeat this right of the President. But this would be a breach of trust, an abuse of the power confided to the Senate, of which that body cannot be supposed capable.9 So the President has a power to convoke10 the legislature; and the Senate might defeat that power by refusing to come. This equally amounts to a negative on the power of convoking.10 Yet nobody will say they possess such a negative, or would be11 capable of usurping it by such oblique12 means. If the Constitution had meant to give the Senate a negative on the grade or destination, as well as the person, it would have said so in direct terms, and not left it to be effected by a sidewind. It could never mean to give them the use of one power thro the abuse of another.

Th: Jefferson

MS (MHi:AM); entirely in TJ's hand; endorsed by Washington: “Construction of the Powers of the Senate with respect to their agency in appointing Ambassadors &ca. and fixing the grade.” PrC (DLC). Dft (DLC); with alterations, the more important of which are indicated in textual notes; endorsed by TJ: “Opinion on the right of the President to diplomatic grades.” This is not an actual composition draft, but a fair copy of some previous and missing text, from which TJ departed in some instances in the course of transcription. FC (DNA: RG 59, SDC).

  1. Dft reads at this point: “… appointed to fill that grade.”
  2. Dft contains a paragraph at this point which TJ deleted: “It is sufficient then that a power be Executive to attribute it to the President, unless it can be found among the articles specially described and submitted to the Senate.”
  3. TJ first wrote in Dft: “… makes him an Agent,” and then altered the passage to read as above.
  4. In Dft TJ first wrote: “… previous to all these” deleted “all” and after these words interlined “and not enumerated at all in the Constitution” he then changed the passage to read as above.
  5. Following this point in Dft TJ first wrote: “That is, in truth, the right given to the Senate” he altered this to read: “giving them and defining in direct terms a right” and he then changed the passage to read as above.
  6. In Dft TJ first wrote “employed,” then substituted “appointed.”
  7. In Dft TJ first wrote “They are,” then altered the passage to read as above.
  8. In Dft TJ first wrote “secrets,” then substituted “concerns.”
  9. In Dft TJ first wrote “… is not supposed capable,” and then altered the passage to read as above.
  10. At these points in Dft TJ first wrote, respectively, “assemble” and “assembling,” then substituted “convoke” and “convoking.”
  11. At this point in Dft TJ first wrote, then deleted: “justifiable or.”
  12. At this point in Dft TJ first wrote “indirect” and then substituted “oblique.”