The Messy Relationship Between the State of the Union and the Constitution
And what the state of the union can tell us about the presidency
In the coming weeks, President Joe Biden will give his first State of the Union address. Unlike some of his predecessors, his speech wasn’t delivered in February (the month after his inauguration), causing many pundits to question whether Biden is breaking the terms of the Constitution.
Like many aspects of the presidency, the State of the Union has evolved since 1789. There are almost no written rules or laws governing the practice, instead it is almost entirely guided by norms and customs. Accordingly, I find it helpful to understand the constitutional origins of the presidential address, and how it has evolved since 1787 when the Constitution was drafted.
Article II, Section 3 of the Constitution states: “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”
But like most things in the Constitution, that’s a pretty vague description. It doesn’t say when the president should update Congress, where the president should update Congress, in what form the president should update Congress, or even how frequently the president needs to update Congress. As a result, the state of the union part of the presidency has evolved organically. None of those evolutions were written down nor codified into law, and there have been many twists and turns along the way.
This process started in April 1789, after Washington took the oath of office and became the first president of the United States. After taking the oath of office, Washington delivered his first inaugural address in front of the assembled Congress at Federal Hall in New York City. In the speech, he acknowledged that Article II, Section 3 requires the president give Congress updates and suggestions for future action. He begged off this particular requirement at the moment, until he had more experience and time in office.
He did take the opportunity, however, to remind congressmen of certain key principles and praise their commitment to the Constitution: “In place of a recommendation of particular measures, the tribute that is due to the talents, the rectitude, and the patriotism which adorn the characters selected to devise and adopt them.” Basically, he was flattering the first class of representatives and senators. Then he said, that he was sure that “no local prejudices, or attachments; no separate views, nor party animosities, will misdirect” their efforts and communal activities. Additionally, he was convinced that “the foundations of our national policy, will be laid in the pure and immutable principles of private morality; and the pre-eminence of free Government be exemplified by all the attributes which can win the affections of its Citizens, and command the respect of the world.”
Let me translate that a bit. Essentially, Washington said that he had no doubt the congressmen would act without partisan or factional division, would serve the public without enriching themselves, and wouldn’t diminish the reputation of free government through their actions. It was both flattery and a bit of a reminder of what was expected by them. I wouldn’t go so far to say it was a veiled threat, but it was basically Washington saying “don’t disappoint me.”
Just a few months later, Washington had a better lay of the land, and took the opportunity to deliver a few recommendations to Congress. On August 7, 1789, he wrote to Congress, “The business which has hitherto been under the consideration of Congress has been of so much importance, that I was unwilling to draw their attention from it to any other subject. But the disputes which exist between some of the United States and several powerful Tribes of Indians within the limits of the Union, and the hostilities which have in several instances been committed on the Frontiers, seem to require the immediate interposition of the general Government.”
A few months after that message, Washington gave his first official “state of the union” on January 8, 1790. Every year, from 1790 to 1797, the first president visited Congress to deliver an address, at Federal Hall in New York City and then at Congress Hall in Philadelphia. Washington gave an update on the American diplomatic relationships with key European nations, recommendations for legislation or domestic policy, and offered encouragement for future.
As with many other aspects of the presidency, John Adams was reluctant to discontinue Washington’s practices — either because he thought it was the right course of action or because he feared criticism from departing from Washington’s example. Accordingly, he also visited Congress every year to deliver his address.
In 1800, Jefferson referred to his election as the “Revolution of 1800.” The change of ruling party and the widespread support for Democratic-Republicans offered Jefferson the chance to reconsider how the president should govern. He seized the opportunity to revise several critical presidential practices, including the annual address. Jefferson believed that the act of delivering a verbal address to Congress smacked of monarchy. Plus, he hated public speaking. Instead of traveling to Congress in person, he sent his written address for them to read. Jefferson assured congressmen that this method was preferable because it gave them time to consider the address more thoroughly, without forcing them to come up with an immediate response. Basically, he was saving them time — or so he argued.
Jefferson’s precedent stuck for over 100 years, until Woodrow Wilson decided to return to in-person visitations. Which is pretty remarkable for two reasons: First, think about the presidents between Jefferson and Wilson. Surely, some of those presidents, like Theodore Roosevelt for example, would have loved the opportunity to speak to Congress in person! The fact that presidents like TR didn’t deliver the annual address in person demonstrates the power of that precedent.
Second, precedents like this one don’t usually change abruptly after 100 years. Presidential powers evolve gradually over time, and norms, customs, and practices usually only undergo dramatic shifts in times of crisis, like war or disaster. Wilson broke with precedent, despite the absence of national disaster or war. That doesn’t happen too often in the scope of American history.
Because that type of action is so unexpected, when Wilson announced he would meet Congress in person, the D.C. community was shocked. Even Wilson’s cabinet doubted whether the speech would be a good idea. But Wilson was a compelling speaker and the press coverage was remarkably positive, so Wilson continued to deliver most of his addresses in person. While he returned to written addresses in the final two years of his presidency due to poor health, Wilson had established a new precedent.
His successors welcomed the opportunity to speak in person to Congress, but there were still fluctuations in practice. For example, the address wasn’t regularly called the “State of the Union” until Franklin D. Roosevelt, because that’s what he called it. Special guests weren’t a regular feature of the State of the Union until Ronald Reagan.
Finally, the date has regularly changed, depending on when Congress gathers and what else is happening in the world. Early presidents regularly delivered their addresses in December, because Congress didn’t reconvene each year until late October or November. After the inauguration date was moved from March to January during FDR’s presidency, January became the regular month for addresses in non-inauguration years, but Bill Clinton, George W. Bush, Barack Obama, and Donald Trump all delivered at least one State of the Union in February.
To this day, there is no constitutional requirement for a specific date (unlike the inauguration) or even the frequency of the speeches. “Regular” is a little bit fuzzy. As you can tell, the State of the Union practices are quite fluid and will likely continue to evolve. But that’s actually true for most of the presidency, as the institution is constantly changing. History is being made each day and is worth watching. I, for one, think that’s pretty exciting.