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has a sufficient motive to do so. If power a negative-at least a qualified or condiis lodged in the majority, impose on it tional negative—on both. The negative what paper restraints you please, you are
you please, you are of the judiciary answers its purpose as far no better off than if
goes; but it is insufficient, because the tion at all, unless you have somewhere in judiciary cannot take cognizance of the the state a force that guaranties them- policy of a measure, and can interpose its that rises up and effectually resists negative only on the ground that the the attempted violation. The Convention, measure is unconstitutional. The system therefore, which drafted the Constitution of checks would, therefore, have been inon parchment, took care to establish it in complete, without the executive veto, the effectual organization of the several which can negative an act not only for its powers of government. The separation unconstitutionality, but also for its imof the powers of government into distinct policy. departments, each provided with means of That the system of checks established self-defense, the separation of the legis- is too effectual, that it has rendered lature into two houses, the peculiar consti- legislation too difficult, no statesman can tution of the Senate, the senatorial term pretend. Our danger lies, as experience for the long period of six years, and the amply proves, in too much legislation—not necessity of the concurrent vote of both in too little. The tendency to over-legishouses to an act of Congress, were all de- late is quite too strong, and we make quite signed to operate as so many checks on too little of wise and efficient administrathe will of the majority, and to prevent, tion. Nothing more distinguishes modern by restraining its action, hasty and unjust times from antiquity, than our excessive legislation. It was not enough to write on legislation, and our tendency to make legispaper that Congress shall pass no laws lating, instead of administrating, the chief hastily, or without a due regard to justice; business of government. The facility with it was necessary to go farther, and to sub- which old laws are repealed or modified, ject the enacting of laws to such condi- and new statutes are enacted, and not in tions, to so many forms and processes, that our country only, is really frightful; and it would be difficult, if not impossible, to what the end thereof will be, men of get a law hastily enacted, or enacted at stronger nerves than we may well tremble all, if contrary to justice.
to think. The utmost contempt for law, The executive veto is integral in the and the wildest disorder would prevail system of checks on the will of the ma- even now, if it did not happen that our jority, of restraints imposed on the exercise courts preserve the common law, the ler of sovereign power, which the Convention non scripta, which, happily for us, serves saw proper to establish. The Convention as a public conscience, and regulates the installed the majority as sovereign, but as greater part of the relations between man a limited, not as an absolute sovereign; and man. If the party among us opposed and the executive veto is an integral part to the common law should succeed in of the limitation which they imposed. abolishing it, and in reducing the entire They wished to make legislation not easy, law of the land to the lex scripta, or statbut difficult; and were far more anxious ute law, we should find ourselves as ill that the laws should be wise and just, off as if we had no law at all. No man than that they should be numerous. Their could tell for six months what the law study was to subject every measure to the would be. We scarcely, in the State or most rigid scrutiny, and to render it impos- the nation, enact a law before we modify sible for any measure to become a law till or repeal it, especially if it is a law after it had been thoroughly sifted, and had likely to prove of some utility in its pracreceived the approbation of the best minds tical operation. We have no settled poand the highest wisdom of the country. licy; we are disputing about the simplest To this end they required for the enactment elements of both civil and criminal law, and of a law the concurrence of all the branch- multiply statutes by steam; a procedure es of the government. They gave to each which would throw everything into confuhouse a negative on the other, and to the sion, if the courts did not now and then go executive and judiciary departments each the full length of their prerogative in inter
preting them, so as to get an innocent or the blind tools of irresponsible party meaning when the legislature had either managers. This discipline and machinery, no meaning, or a meaning subversive of all when adopted by one party, has to be the legitimate ends of legislation. Surely, adopted by the other in self-defense, and no statesman, especially no lawyer worthy we have now arrived at the point when of the name, can wish for greater facility all the affairs of government are managed of legislation than we now have, or regard by party; and a power, through party, the actual Constitution as rendering it too unknown to the Constitution, is installed difficult.
as sovereign. This power is vested noIt is strange, we remark by the way, body can say where or precisely in whom ; that at this late period of the world's his- it is wielded by no public law, by no retory, this rage for legislating should so pre- sponsible chiefs, and though all-controlling, vail
, and entire communities should act as if you can nowhere lay your finger on it. law had now for the first time to be crea- It is at once the slave and the master of ted. Has nothing been settled, and have every body. This power, acting without we existed as a civilized people for these public recognition, without public respontwo hundred years without law, or with-sibility, dictates the policy of the governout law adequate to the wants of a free ment, and selects the candidates for office. and thriving people? Do we need to be The officers when chosen find themselves told that law, as a science, was projected subject to it, hemmed in by it; obliged, even centuries before we were born, and they can hardly tell why or wherefore, to that the modifications necessary to adapt obey it; and having no employment for it to what there may be novel or peculiar their own judgments, they give themin our condition and circumstances are selves up to it, and merge their own revery few? Can we answer how many of sponsibility in its irresponsibleness, and the evils we are compelled to suffer, spring never trouble themselves to ascertain from the rejection of old law science, and whether what they do is for the good of from experimenting in legislation as if we the country or not'; it is enough for them had the whole science to build up anew? that it receives the sanction of their party. Do we need to be told that our foolish The consequence is, that in our acts of govlegislative experiments are the principal ernment we do not get an expression of cause of the constant convulsions of our the popular reason, nor of the personal conbusiness world, and that had it not been victions or conscientious judgments of for the youth and vigor of our community, even the men who are nominally clothed our experimental legislation would long with authority ; we get only the wishes or ere this, by the insecurity to property it interests of party, or rather of the uncauses, and the frequency with which it namable and irresponsible managers of makes it pass from its owners to others, party one-sided and selfish, and rarely have proved our total ruin? Surely, if compatible with the interests of the counwe trace the history of our legislation for try at large. Nothing is or can be more inthe last twenty years, we shall not doubt portant, then, than an organization of rethat checks on sovereign power
straints which render legislation difficult, needed, and all the checks, and more and prevent the possessors of power from than all the checks which the Constitution rushing, in their madness and irresponsiprovides.
bleness, into measures ruinous to the The Convention felt that there would country. You have some moral value of be a tendency to hasty, unnecessary, and a man as long as there is nothing between ruinous legislation, but that tendency has him and the public, as long as he feels proved to be stronger even than they ap- that he must answer directly to the pubprehended. They had no great confidence lic for his acts; but when a party stands in majorities, but they did not foresee between him and the public, and his how majorities would be manufactured, nor reliance is on his party and not on his anticipate the introduction of that perfect country, you have none at all. If he party discipline and party machinery does the will of his party, that will upwhich have since been introduced, and hold him, and vindicate his acts; and that which render the people either a nullity, is all that his interests or his reputation require; consequently, the more is in the majority in both houses, brings predominant the partyism, the more neces- about that amalgamation of the executive sary are the constitutional checks on power. and legislative functions of government,
It is true that the very reasons which which the Convention hoped by means of render the Executive veto the more neces- the executive veto to prevent. This terrisary, tend also to render it less adequate; ble evil will be remedied only when we because the same doctrine of party ope- have an executive who adopts and acts on rates on the executive with hardly less the sound principles proclaimed by our force than on the members of Congress present worthy chief magistrate in his themselves, and tends to withhold the letters before his election, and in his noble President from employing it against a fa- inaugural address. But it is not easy in vorite measure of his own party. This is the present state of public opinion to act an evil, a great evil, but not an objection on those high and independent principles, to the veto power in itself considered. and will not be, till the public mind, by It is an objection only to its sufficiency, means of the press, shall be brought more and proves, not that is injurious, but into harmony with those great conservathat it does not do all the good or pre- tive principles of government, which have vent all the mischief it should. The Exe- been so generally neglected for the last cutive that refuses to employ it when he twenty years, but without which our constitutionally ought, is as an Executive liberties exist only in name, and wise and that has it not; and his refusing to employ just government is but a dream. it when its employment is demanded, is, as It may be objected to the veto power, far as it goes, an argument for it, not against that it is seldom likely to be employed, it. This evil which we admit, will, no except against such measures as secure a doubt, subsist, as long as parties continue majority in Congress only by a union of their present policy of selecting as can- some members of the party to which the didates for chief magistracy of the Re- Executive belongs with the opposition, public, not their greatest and best men- and which, since they combine, in some men well known to be fully qualified for degree, the support of both parties, are the office, and able to stand of themselves the least likely to be hasty or unjust. without being held up by party discipline That is, the negative will not be employed and machinery—but their most available when it should be, and will be when it men—men who will run the best, because should not. Experience does not fully they carry the least weight. This is a bear out this objection, but we grant that bad policy, even for the party itself, as it has some force. In several instances well as for the country, though sometimes, the veto has been applied in the manner perhaps, necessary to avoid the greater here supposed, and it is this fact that has evil. When one party adopts it, such is led some of our Whig friends, contrary, as the fickleness, short-sightedness, and silli- we must believe, to their general princiness of the mass of every party, that the ples, to propose its abolition or modificaother is often obliged to do the same. tion. But we are Conservatives, and we But the consequence is always bad. The are loath to lay a rude hand on the ConExecutive wants self-reliance ; conscious stitution. Experiments in amending conof his own inexperience, perhaps of his stitutions, State or national, have not thus own inability to discharge properly the far proved very successful, and, in general, duties of his high office, he is afraid to act we find the amended constitution more in independently, from his own convictions, need of amendment than the original conon his own responsibility, and therefore stitution itself. In almost every instance throws himself back on his party, merges that has come under our knowledge, the his individuality in it, yields blindly to its so-called amendments adopted have proved dictation, and throws upon it the entire a serious injury to the Constitution—have responsibility of his acts, which it must impaired its symmetry, rendered it less assume, or else go out of power, and let efficient, and made new alterations necesthe opposition come in. The consequence sary; besides wakening in the public conis that he surrenders his independence to science that sacredness which should his party in Congress, and, if that party always attach to the constitution of the State. Obvious anomalies which tend to gress may choose to pass, without indefeat in practice the general design or quiry as to its constitutionality, and he intent of the Constitution, or clauses origi- will always do so, unless he has some nally good, but rendered injurious by motive to do otherwise. If he does social changes or revolutions which have otherwise, it must be either from a sense subsequently occurred, we would, of of duty, or for the hope of gaining public course, have removed; but beyond that, applause or support. we believe it never prudent to venture. It should be borne in mind that the Nothing is more unwise or unstatesman- veto power is purely negative; that like than to alter a constitution, for the when constitutionally employed, it gives sake of harmonizing it with changes which to the Executive no positive power of may have taken place in mere public legislation, enables him to fasten no obopinion, or of conforming it to the de- jectionable policy on the country, but mands of some newly invented or newly merely arms him with a conservative power revived political theory. No constitution, to preserve to some extent laws already constructed in accordance with a political in force, and to prevent or delay the adoptheory, ever worked or ever did work tion of new measures and of a new line of well, for the simple reason that every policy. It is a power perfectly in accordtheory is despotic, and no man, much less ance with the principles of our governthe mass of men, ever did or ever will act ment, and is repugnant to radical but throughout life in accordance with a not to Whig doctrines. Opposition to it theory. Every man's life is full of anoma- could come consistently enough from the lies; and it is far more with the anoma- democratic party; but from the Whig parlies in life and society, than with the nor- ty, it strikes us, not without some inconmal, or what comes within the rule, that sistency. True, it has been used to defeat government must deal. A constitution favorite measures of the Whig party, but that preserves a systematic consistency it is no Whig doctrine to seek to carry throughout, is necessarily either imprac- measures in spite of the Constitution, or ticable or despotic. Governments to attack the Constitution when it operfounded in practical reason, not in specu-ates against us. We are sworn to the lative reason ; and good sense, aided by Constitution for “better or for worse,' large experience, must determine their and we trust we are prepared to forego constitution, not speculation. The Eng- every public good not to be attained under lish, who bave much good sense, but very it, and in accordance with its provisions, little speculative genius, and who care It is said by some that the executive little for systematic consistency, maintain veto cannot be legitimately employed a comparatively free government. The except on the ground of the unconFrench and Germans, who are far their stitutionality of the measure negatived. superiors in speculative science, and who This we apprehend is a mistake, no redraw out constitutions perfectly satisfac- striction of this sort, or of any sort, is tory to speculative reason, forever alter- to be found in the Constitution itself.* nate in practice between anarchy and despotism. No constitution will avert all evil, and wisdom requires us to submit to
* “Every bill which shall have passed the many evils ; for what works evil to-day before it becomes a law, be presented to the
House of Representatives and the Senate, shall, may work good to-morrow. By attempt- President of the United States; if he approves, ing to remove the evils which we occasion he shall sign it, but if not, he shall return it, with ally suffer, we not seldom lose the good his objections, to that house in which it shall have we are in possession of, and open the door originated, who shall enter the objections at large to greater evils from which we are as yet after such consideration two-thirds of that house
on their journal, and proceed to reconsider it. If free.
shall agree to pass the bill, it shall be sent, together The exercise of his negative is, on the with the objections, to the other house, by which part of the Executive, an act of great per- it shall likewise be reconsidered, and if approved sonal responsibility. The easiest way for by two thirds of that house
, it shall become a bim is to throw the responsibility on Con- President within ten days, (Sundays excepted)
law.”—“If any bill shall not be returned by the gress, and approve whatever act Con- | after it shall have been presented to him, the
The power to negative extends to all his qualified negative. Other objections acts of Congress, and nothing is said than the mere unconstitutionality of acts as to the grounds on which it is to of Congress are then, we must believe, be applied. The Executive is left sole proper subjects for the Executive to conarbiter of his reasons for applying his sider; and, since to confine him to the negative, only he is to communicate simple question of constitutionality would them to Congress. Congress may judge deprive him of the power to maintain the of their sufficiency, and if by a ma- independence of the executive departjority of two-thirds they judge them ment of government, we must hold that insufficient, they count for nothing, and he not only is not, but ought not, to be the measure becomes a law in spite of them. so confined in the employment of his It is clear from the debates of the Con- negative. vention, that the Convention did not intend Our readers will perceive that we have to restrict the power to the simple con- given ourselves a considerable latitude stitutionality of the acts of Congress; that of discussion. Our object has, indeed, power is in the judiciary, and the execu- been to defend the veto power, but at tive veto, if so restricted, would be super- the same time to draw attention to those fluous. The Convention believed that general principles of our Constituion and acts might be passed not absolutely un- government which in the democratic exconstitutional, which nevertheless would citement of the times, and the bustle and tend to impair the independence of the confusion created by party struggles, we Executive, or would be impolitic or un- are in danger of forgetting. We have just, and it was to provide a negative wished to point out the place of the on such acts which the judiciary could executive veto in our plan of governnot reach, that they gave the Executive ment, and incidentally to lay open and
defend that plan itself. The writer of same shall be a law, in like manner as if he had this is no political theorist, he is an Amerisigned it, unless the Congress by their adjournment prevent its return, in which case it shall not
can, and an American conservative both be a law."--Const. of the U. S., Art. I, Sec. 7.
from principle and from inclination, and “ All legislative powers herein granted shall be is opposed alike to innovations in the vested in a Congress of the United States, which system of government established, and shall consist of a Senate and House of Represen to the experimental legislation which has tatives."--Const. of U. S., Art. 1, Sec. 1. The object of this provision of the Constitu
become so much the rage. He believes tion appears clearly in the form of the execu- that the Constitution is too little studied, tive oath, “I do solemnly swear,” &c. “ that I and that the real character of our instiwill,” &c. “ preserve, protect, and defend the tutions is too little understood and Constitution of the United States."
In the above essay the careless or prejudiced appreciated. If what he has said shall reader may perhaps seem, or affect, to discover an
any of our gifted and learned young inclination in our author to defend the employ- men to a more diligent study of the ment of the veto power, as it has been freely em- American constitution, his purpose will ployed during the last twenty years, for private have been answered, and he will not have or party purposes. Nothing, however, could be farther from the design of the author, than to ad
written in vain. mit so loose a construction of the Constitution. We conceive the veto power, like the separate
NOTE BY THE EDITOR.-The doctrine in powers of the two houses of Congress, to be con- regard to the veto power, hitherto maintained ferred upon the Executive as a means of self- | by the Review, has been, that that power shonld preservation and defense, as a means of prevent- never be employed excepting in cases of exing direct violations of the Constitution, and as a treme emergency, when the action of Congress check upon the violence and impetuosity, the so- has been either clearly unconstitutional, the called “hasty legislation" of an excited legisla-executive oath in such cases demanding an ture.
Under circumstances of peculiar excite-employment of the veto power, or when the ment, when parties are equally divided, a most
President may be compelled to employ it for iniquitous measure might become a law, were it
the defense of his own prerogative, or the not for the conservative barrier erected against it in the presidential veto. We therefore regard prerogative of other branches of the governthe veto as our defender against the great mis
ment. chiefs that may happen from the hasty and ill
The Whig opposition to the too frequent considered action of a small and virulent majority. employment of the veto power, is founded, not - EU,
so much upon a general apprehension of the