Constitutionality of the Residence Bill
The brief memorandum printed below is the only surviving record of JM’s opinion regarding the constitutionality of the bill which fixed the permanent national capital on the Potomac and the temporary capital at Philadelphia. The constitutional question had arisen during the latter stages of the House debate on the bill and continued during the interval between the passage of the bill on 9 July and its signing by President Washington on 16 July. Writing in the N.Y. Daily Advertiser of 13 July, “Junius Americanus” urged the president to refuse his assent, contending that the bill was unconstitutional. The author of this address was almost certainly Representative William Smith of South Carolina. Both Smith and “Junius Americanus” contended that the fifth section of the residence bill, designating Philadelphia as the place where the next session of Congress was to be held, was contrary to the clause of the Constitution (Article I, Section 7) which declares that “every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States.” This clause, argued “Junius Americanus,” vested the power of adjournment in the two houses alone; any attempt to adjourn by law (which required the president’s approval) was therefore unconstitutional.
The argument may seem specious now, but Washington was disturbed enough by the “Junius Americanus” argument to request Jefferson’s opinion on the constitutionality of the bill. The secretary of state dutifully responded on 15 July with a persuasive refutation of “Junius Americanus,” and the president signed the bill the next day. Washington probably would not have sought such advice had it not been for the embarrassing fact—which “Junius Americanus” made much of in his address—that JM had employed some of the same arguments against the Susquehanna residence bill of the previous session (see PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville, Va., 1977—). description ends , XII, 416–18). This circumstance no doubt made it imperative that the secretary of state consult closely with JM in preparing his opinion for the president. Although the final result may have been the product of both minds, the only written evidence of JM’s participation is the supporting point in his hand appended to Jefferson’s draft (which Jefferson apparently decided was not needed in the final copy submitted to the president). Either expediency or a sincere change of mind led JM to abandon his former constitutional ground, but he could not escape the charge of inconsistency. A writer in the Daily Advertiser of 11 August, however, maintained that those who opposed the 1789 bill and approved the 1790 bill acted consistently with the Constitution in both instances. Julian Boyd speculates that JM wrote this piece, but without more substantial evidence pointing to him as the author the editors cannot consider the newspaper essay to be a JM document. Boyd prints this essay along with the other documents relating to this episode (introduced by an editorial note) in Papers of Jefferson, XVII, 163–208.
[ca. 14 July 1790]
… this reasoning is inforced by the clause (Art. 2. Sect 1.) which says the list of votes of the electors shall be transmitted to the seat of Govt. directed to the President of the Senate, who in presence of the Senate & H. of Reps. shall open the certificate &c. The seat of Congs. then must be at the seat of Govt. It is admitted that the seat of Govt. can not be where the Ex: part of the Govt. does not sit. The 3 branches then must sit together & each having a will independent of the other, all must concur in saying where the common seat shall be, that is, a law ought to pass for the purpose.
Ms (DLC: Jefferson Papers). In JM’s hand. The dating of this memorandum is based on these circumstances: on the verso is a fragment of a note addressed to JM in the hand of Benjamin Hawkins containing the names of some of the senators who voted for and against the Senate motion of 14 July for the assumption of state debts; JM’s comment is attached to Jefferson’s draft opinion, which the secretary of state copied and sent to the president on 15 July (see preceding Editorial Note).