1793
To avoid entanglement in the growing war between France and Great Britain, George Washington issued a Proclamation of Neutrality in 1793. He realized that there might be some problems resulting from the proclamation that would require judicial resolution, and he sought an advisory opinion from the Supreme Court on those questions. The Constitution does not specifically empower the Court to give advisory opinions, but neither does it forbid it to do so. A number of state courts then as now do give advisory opinions to the executive or legislative branches regarding the constitutionality of proposed orders or legislation, and if the Court had decided to do so few people would have considered it wrong. But Chief Justice John Jay took a very strict view of the responsibilities and functions of each branch, and in his reply to Washington’s request reaffirmed and strengthened the idea of separation of powers.
See J. Goebel, Antecedents and Beginnings to 1801 (I 971), the first volume of the Holmes Device, P. Freund; gen. ed., History of the Supreme Court of the United States; and R. Morris; John Jay, the Nation and the Court (1967).
Thomas Jefferson to Chief Justice Jay and Associate Justices, Philadelphia, July 18, 1793
GENTLEMEN:
The war which has taken place among the powers of Europe produces frequent transactions within our ports and limits, on which questions arise of considerable difficulty; and of greater importance to the peace of the United States: These questions depend for their solution on the construction of our treaties, on the laws of nature and nations·, and on’ the laws of the land, and are often presented under circumstances which do not give a cognisance of them to the tribunals of the country. Yet their decision is so little analogous to the ordinary functions of the executive, as to occasion much embarrassment and difficulty to them. The President therefore would be much relieved if he found himself free to refer questions of this description to the opinions of the judges of the Supreme Court of the United States, whose knowledge of the subject would secure us against errors dangerous to the peace of the United States, and their authority insure the respect of all parties. He has therefore asked the attendance of such of the judges as could be collected in time for the occasion, to know, in the first place, their opinion, whether the public may, with propriety, be availed of their advice on these questions? And _if they may, to present, for their advice, the abstract questions which have already occurred, or may soon occur, from which they will themselves strike out such as any circumstances might; in their opinion, forbid them to pronounce on. I have the honour to be with sentiments of the most perfect respect, gentlemen.
Your most obedient and humble servant.
Chief-Justice Jay and Associate Justices to President Washington, Philadelphia, 8th August, 1793.
SIR:
We have considered the previous question stated in a letter written by your direction to us by the Secretary of State on the 18th of last month, [regarding) the lines of separation drawn by the Constitution between the three departments of the government. These being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments.
We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States.
We have the honour to be, with perfect respect, sir, your most obedient and most humble servants.