The first three articles of the U.S. Constitution establish the three branches of the federal government – legislative, executive and judicial. This separation of powers provides a check on the consolidation of control over the government. Montesquieu, a source of inspiration for the framers at the constitutional convention, worried about the loss of liberty and the rise of tyranny should any person or body control more than one of these sources of authority.

Presumably, then, the chief justice of the United States cannot serve as the president’s secretary of state. Au contraire, argued professor Saikrishna Prakash last week in a lecture at the court sponsored by the Supreme Court Historical Society. And in fact this very situation occurred in the nation’s early history. John Jay, who had been the secretary of foreign affairs under the Articles of Confederation, continued to fulfill this role in an acting capacity during the nation’s transition to the new federal government, even after he became the first chief justice. John Marshall, after becoming the fourth chief justice, also continued to serve as secretary of state for President John Adams (and briefly for President Thomas Jefferson). Perhaps more striking than these temporary overlaps, three of the first four chief justices – Jay, Marshall and Oliver Ellsworth – negotiated treaties as special envoys to foreign nations.

What to make of this double duty? Prakash suggested that these overlapping appointments reveal conceptual differences between the 18th century and today about the independence of judicial power.

Even at the start of the republic, Prakash explained, not everyone approved of this practice. Perhaps the most notorious founding father, Sen. Aaron Burr of New York – later vice president, killer of Alexander Hamilton and defendant on charges of treason – led a 1794 Senate campaign against Jay, whom President George Washington had nominated as a special envoy to negotiate a treaty with Great Britain.

Prakash quoted Burr as calling the appointment of a sitting judge to an executive-branch position “contrary to the spirit of the Constitution,” “mischievous and impolitic.” Burr and his Senate allies presented a series of arguments against Jay that may seem intuitive to a modern American audience.

Most generally, the anti-Jay forces contended that the possibility of obtaining a position within a presidential administration would corrupt judges into ruling in such a way as to impress the president and other executive officials. In addition, the supremacy clause of the Constitution declares that treaties with sovereign nations are the law of the land. As a special envoy, Jay would make law that he would then interpret as a judge. Burr and his allies pointed out as well that a chief justice who also served in a presidential cabinet might be unable to preside impartially over a president’s impeachment trial in the Senate. Finally, they wondered whether the Supreme Court needed more work if its chief justice had time to take on an additional assignment.

In contrast, Prakash maintained, Washington – the “general contractor” of the Constitution, as professor Edward Larson argued in a different society lecture – evidently did not see a constitutional problem with nominating Jay, nor did Jay with accepting the nomination. In the end, even the Senate did not object, and it sent Jay off to conduct the negotiations.

A provision in the Constitution prohibits legislators from serving in either of the two other branches. But, Prakash observed, no clause similarly limits judges from engaging in executive functions, or vice versa. Prakash noted that some delegates to the constitutional convention in Philadelphia did propose such a rule, but the group never even voted on the idea.

Although some state constitutions in the 18th century did specifically bar judicial-executive double-duty, overlap of personnel was common, Prakash reported. For instance, the governor of New Jersey at that time served as chancellor of the state’s court of appeals.

Prakash argued that the framers’ apparent acceptance of overlap between judicial and executive positions reveals that legal conceptions at the time of the framing differed from our current understanding. Within English law, the judicial power historically constituted a subcomponent of executive power. Even an independent judiciary maintains a close connection to the executive function because both involve the application of laws. James Madison once described the two sources of authority as representing “two shoots from the same stalk.”

In Prakash’s telling, Congress took other actions that reflect this conceptual merging of the two powers. For example, Congress formed two executive committees – a “sinking fund” committee to buy up debts and a minting committee to verify coins. By statute, the chief justice served on both of these committees.

Returning to Jay, Prakash suggested that political more than constitutional concerns motivated Burr and his associates, who feared Jay was too pro-British to negotiate a favorable treaty. Indeed, popular opinion largely denounced the resultant Jay Treaty. Jay – once widely seen as the natural successor to Washington as president – found his national reputation ruined. Jay did maintain popularity in New York, and he resigned from the Supreme Court to serve as the state’s governor. (However, Prakash noted, nothing in New York or constitutional law would have technically forbidden him from keeping both jobs.)

Prakash closed by acknowledging that contact between the executive and judicial branches is frowned upon today – a contrast from Washington’s frequent practice of turning to Supreme Court justices for advice.

Prakash spoke as part of the historical society’s 2017 Leon Silverman Lecture Series, which this year focuses on Supreme Court justices and presidential cabinets. On October 18, professor Cynthia Nicoletti will give a lecture entitled “Salmon Chase and the Permanency of Union.” More information is available on the society’s website.

Posted in Featured, Supreme Court history

Recommended Citation: Andrew Hamm, When the chief justice serves as secretary of state: Saikrishna Prakash on separation of personnel in the U.S. Constitution, SCOTUSblog (Oct. 10, 2017, 12:44 PM), http://www.scotusblog.com/2017/10/chief-justice-serves-secretary-state-saikrishna-prakash-separation-personnel-u-s-constitution/