Washington epitomized the self-restraint that is at the heart of democratic government. His judicial values (rule of law, moderation, and magnanimity) and appointments left an enduring legacy for the world’s first large experiment in self-government.
Washington inherited and married into wealth but was deprived of a formal education because of the early loss of his father. Nonetheless, Washington was ambitious and self-taught. Conservative by nature, he became a revolutionary only after he was denied a regular commission in the British army. As the majority of the Founders would, he justified his behavior in terms of English political philosopher John Locke’s Second Treatise on Civil Government (1690). The Founders saw themselves as upholding natural law when it, as well as common law, was abridged by the Crown. Washington’s restraint in the Revolutionary War and his subsequent willingness to surrender his military power showed consistency. After the Articles of Confederation proved ineffective and with much persuasion, Washington came out of retirement to preside at the 1787 Constitutional Convention. As the first national hero of the United States, his presence in Philadelphia promoted the likely success of the new experiment in federalism. The minimal mention of presidential powers found in the Constitution derives from the general trust the Founders had in Washington’s demonstrated character.
The second time Washington came out of retirement, he accepted the presidency and initiated precedents for both the chief executive and the Supreme Court. During his two presidential terms, he set the record for Court nominations: fourteen nominations, twelve confirmations, and ten actual seatings. His appointees who served were John Jay,
The collective impact of these appointments on the Court was less than impressive. The much more important effect came after Washington’s death and stemmed indirectly from the twenty-eight-year judicial partnership on the Court between his favorite nephew, Bushrod Washington, and John Marshall. Together from the bench, Washington and Marshall implemented the first president’s national values.
An important part of Washington’s values derived from his recognition that he was setting precedents for the new nation. These precedents would reveal his character to peers and subsequent generations. As a representative of the New World, he wanted to leave a legacy of merit in contrast to the inherited social privileges prevalent in the Old World. In considering nominees for the Court, Washington set seven standards for potential justices. They had to be Constitutionalists, Revolutionary War supporters, political activists, experienced jurists, individuals of character, devoted patriots, and geographically representative. The majority of his justices had served at the 1787 Constitutional Convention. Washington’s first appointment was his nominee for chief justice, John Jay, one of three writers of The Federalist (1788), a major contribution to Western political thought. Several of Washington’s appointees had served in his army during the Revolutionary War.
Although Washington favored a mixed system of government more than one with completely separate branches, he strove to create a strong judiciary by staffing it with qualified and effective leaders. Washington experimented with bringing together the other branches of government. He formally sought the opinions of the members of the Court, and when rebuffed, he relied upon informal consultation. He used Chief Justice Jay in the negotiation with Great Britain that resulted in Jay’s Treaty.
Although typically the voice and exemplar of political moderation, Washington heeded Alexander Hamilton’s advice by leading a show of force against the 1794 Whiskey Rebellion in western Pennsylvania. However, he treated the rebels as he had treated Loyalists after the Revolutionary War and as he would treat slaves in his will: with a consistent spirit of magnanimity. He began the tradition, followed by virtually all of the most active and flexible chief executives, of using the amnesty power in the spirit of achieving justice. This was just another illustration of his preference for using the executive’s own judicial power in a mixed rather than totally separate system of governmental powers. Both in deed and in spirit, Washington provided the precedent and legacy for the United States’ experiment in self-government.
Abraham, Henry J. Justices and Presidents. New York: Oxford University Press, 1974. Cronin, Thomas E. Inventing the American Presidency. Lawrence: University Press of Kansas, 1989. Pederson, William D. “Amnesties and Pardons.” In The American Revolution 1775-1783: An Encyclopedia. Vol. 1, edited by Richard L. Blanco. New York: Garland, 1993. _______, ed. The “Barberian” Presidency. New York: Lang, 1989. Pederson, William D., and Ann McLaurin, eds. The Rating Game in American Politics. New York: Irvington, 1987. Rozell, Mark, William D. Pederson, and Frank J. Williams, eds. George Washington and the Origins of the Presidency. Westport, Conn.: Praeger, 2000.
Nominations to the Court
Rule of law