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It is strange, we remark by the way, that at this late period of the world's history, this rage for legislating should so prevail, and entire communities should act as if law had now for the first time to be created. Has nothing been settled, and have we existed as a civilized people for these two hundred years without law, or without law adequate to the wants of a free and thriving people? Do we need to be told that law, as a science, was projected even centuries before we were born, and that the modifications necessary to adapt it to what there may be novel or peculiar in our condition and circumstances are very few? Can we answer how many of the evils we are compelled to suffer, spring from the rejection of old law science, and from experimenting in legislation as if we had the whole science to build up anew? Do we need to be told that our foolish legislative experiments are the principal cause of the constant convulsions of our business world, and that had it not been for the youth and vigor of our community, our experimental legislation would long ere this, by the insecurity to property it causes, and the frequency with which it makes it pass from its owners to others, have proved our total ruin? Surely, if we trace the history of our legislation for the last twenty years, we shall not doubt that checks on sovereign power needed, and all the checks, and more than all the checks which the Constitution provides.
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 nobody can say where or precisely in whom ; it is wielded by no public law, by no responsible chiefs, and though all-controlling, you can nowhere lay your finger on it. It is at once the slave and the master of everybody. This power, acting without public recognition, without public responsibility, dictates the policy of the government, and selects the candidates for office. The officers when chosen find themselves subject to it, hemmed in by it; obliged, they can hardly tell why or wherefore, to obey it; and having no employment for their own judgments, they give themselves up to it, and merge their own responsibility in its irresponsibleness, and never trouble themselves to ascertain whether what they do is for the good of the country or not; it is enough for them that it receives the sanction of their party. The consequence is, that in our acts of government we do not get an expression of the popular reason, nor of the personal convictions or conscientious judgments of even the men who are nominally clothed with authority; we get only the wishes or interests of party, or rather of the unnamable and irresponsible managers of party one-sided and selfish, and rarely compatible with the interests of the country at large. Nothing is or can be more important, then, than an organization of restraints which render legislation difficult, and prevent the possessors of power from rushing, in their madness and irresponsibleness, into measures ruinous to the country. You have some moral value of a man as long as there is nothing between him and the public, as long as he feels that he must answer directly to the public for his acts; but when a party stands between him and the public, and his reliance is on his party and not on his country, you have none at all. If he does the will of his party, that will uphold him, and vindicate his acts; and that is all that his interests or his reputa
The Convention felt that there would be a tendency to hasty, unnecessary, and ruinous legislation, but that tendency has proved to be stronger even than they apprehended. They had no great confidence in majorities, but they did not foresee how majorities would be manufactured, nor anticipate the introduction of that perfect party discipline and party machinery which have since been introduced, and which render the people either a nullity,
tion require; consequently, the more more predominant the partyism, the more necessary are the constitutional checks on power. It is true that the very reasons which render the Executive veto the more necessary, tend also to render it less adequate; because the same doctrine of party operates on the executive with hardly less force than on the members of Congress themselves, and tends to withhold the President from employing it against a favorite measure of his own party. This is an evil, a great evil, but not an objection to the veto power in itself considered. It is an objection only to its sufficiency, and proves, not that is injurious, but that it does not do all the good or prevent all the mischief it should. The Executive that refuses to employ it when he constitutionally ought, is as an Executive that has it not; and his refusing to employ it when its employment is demanded, is, as far as it goes, an argument for it, not against it. This evil which we admit, will, no doubt, subsist, as long as parties continue their present policy of selecting as candidates for chief magistracy of the Republic, not their greatest and best menmen well known to be fully qualified for the office, and able to stand of themselves without being held up by party discipline and machinery-but their most available men-men who will run the best, because they carry the least weight. This is a bad policy, even for the party itself, as well as for the country, though sometimes, perhaps, necessary to avoid the greater evil. When one party adopts it, such is the fickleness, short-sightedness, and silliness of the mass of every party, that the other is often obliged to do the same. But the consequence is always bad. The Executive wants self-reliance; conscious of his own inexperience, perhaps of his own inability to discharge properly the duties of his high office, he is afraid to act independently, from his own convictions, on his own responsibility, and therefore throws himself back on his party, merges his individuality in it, yields blindly to its dictation, and throws upon it the entire responsibility of his acts, which it must assume, or else go out of power, and let the opposition come in. The consequence is that he surrenders his independence to his party in Congress, and, if that party
is in the majority in both houses, brings about that amalgamation of the executive and legislative functions of government, which the Convention hoped by means of the executive veto to prevent. This terrible evil will be remedied only when we have an executive who adopts and acts on the sound principles proclaimed by our present worthy chief magistrate in his letters before his election, and in his noble inaugural address. But it is not easy in the present state of public opinion to act on those high and independent principles, and will not be, till the public mind, by means of the press, shall be brought more into harmony with those great conservative principles of government, which have been so generally neglected for the last twenty years, but without which our liberties exist only in name, and wise and just government is but a dream.
It may be objected to the veto power, that it is seldom likely to be employed, except against such measures as secure a majority in Congress only by a union of some members of the party to which the Executive belongs with the opposition, and which, since they combine, in some degree, the support of both parties, are the least likely to be hasty or unjust. That is, the negative will not be employed when it should be, and will be when it should not. Experience does not fully bear out this objection, but we grant that it has some force. In several instances the veto has been applied in the manner here supposed, and it is this fact that has led some of our Whig friends, contrary, as we must believe, to their general principles, to propose its abolition or modification. But we are Conservatives, and we are loath to lay a rude hand on the Constitution. Experiments in amending constitutions, State or national, have not thus far proved very successful, and, in general, we find the amended constitution more in need of amendment than the original constitution itself. In almost every instance that has come under our knowledge, the so-called amendments adopted have proved a serious injury to the Constitution-have impaired its symmetry, rendered it less efficient, and made new alterations necessary; besides wakening in the public conscience that sacredness which should always attach to the constitution of the
gress may choose to pass, without inquiry as to its constitutionality, and he will always do so, unless he has some motive to do otherwise. If he does otherwise, it must be either from a sense of duty, or for the hope of gaining public applause or support.
It should be borne in mind that the veto power is purely negative; that when constitutionally employed, it gives to the Executive no positive power of legislation, enables him to fasten no objectionable policy on the country, but merely arms him with a conservative power to preserve to some extent laws already in force, and to prevent or delay the adoption of new measures and of a new line of policy. It is a power perfectly in accordance with the principles of our government, and is repugnant to radical but not to Whig doctrines. Opposition to it could come consistently enough from the democratic party; but from the Whig party, it strikes us, not without some inconsistency. True, it has been used to defeat favorite measures of the Whig party, but it is no Whig doctrine to seek to carry measures in spite of the Constitution, or to attack the Constitution when it operates against us. We are sworn to the Constitution for "better or for worse," and we trust we are prepared to forego every public good not to be attained under it, and in accordance with its provisions.
State. Obvious anomalies which tend to defeat in practice the general design or intent of the Constitution, or clauses originally good, but rendered injurious by social changes or revolutions which have subsequently occurred, we would, of course, have removed; but beyond that, we believe it never prudent to venture. Nothing is more unwise or unstatesmanlike than to alter a constitution, for the sake of harmonizing it with changes which may have taken place in mere public opinion, or of conforming it to the demands of some newly invented or newly revived political theory. No constitution, constructed in accordance with a political theory, ever worked or ever did work well, for the simple reason that every theory is despotic, and no man, much less the mass of men, ever did or ever will act throughout life in accordance with a theory. Every man's life is full of anomalies; and it is far more with the anomalies in life and society, than with the normal, or what comes within the rule, that government must deal. A constitution that preserves a systematic consistency throughout, is necessarily either impracticable or despotic. Governments are founded in practical reason, not in speculative reason; and good sense, aided by large experience, must determine their constitution, not speculation. The English, who have much good sense, but very 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 many evils; for what works evil to-day may work good to-morrow. By attempting to remove the evils which we occasionally suffer, we not seldom lose the good we are in possession of, and open the door to greater evils from which we are as yet free.
The exercise of his negative is, on the part of the Executive, an act of great personal responsibility. The easiest way for him is to throw the responsibility on Congress, and approve whatever act Con
Every bill which shall have passed the before it becomes a law, be presented to the House of Representatives and the Senate, shall, President of the United States; if he approves, he shall sign it, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large after such consideration two-thirds of that house on their journal, and proceed to reconsider it. If shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which by two thirds of that house, it shall become a it shall likewise be reconsidered, and if approved
law."-"If any bill shall not be returned by the President within ten days, (Sundays excepted,) after it shall have been presented to him, the
The power to negative extends to all acts of Congress, and nothing is said as to the grounds on which it is to be applied. The Executive is left sole arbiter of his reasons for applying his negative, only he is to communicate them to Congress. Congress may judge of their sufficiency, and if by a majority of two-thirds they judge them insufficient, they count for nothing, and the measure becomes a law in spite of them. It is clear from the debates of the Convention, that the Convention did not intend to restrict the power to the simple constitutionality of the acts of Congress; that power is in the judiciary, and the executive veto, if so restricted, would be superfluous. The Convention believed that acts might be passed not absolutely unconstitutional, which nevertheless would tend to impair the independence of the Executive, or would be impolitic or unjust, and it was to provide a negative on such acts which the judiciary could not reach, that they gave the Executive
same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law."-Const. of the U. S., Art. I, Sec. 7.
"All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Represen
tatives."-Const. of U. S., Art. I, Sec. 1.
The object of this provision of the Constitution appears clearly in the form of the executive oath, "I do solemnly swear," &c. "that I will," &c. "preserve, protect, and defend the Constitution of the United States."
his qualified negative. Other objections than the mere unconstitutionality of acts of Congress are then, we must believe, proper subjects for the Executive to consider; and, since to confine him to the simple question of constitutionality would deprive him of the power to maintain the independence of the executive department of government, we must hold that he not only is not, but ought not, to be so confined in the employment of his negative.
Our readers will perceive that we have given ourselves a considerable latitude of discussion. Our object has, indeed, been to defend the veto power, but at the same time to draw attention to those general principles of our Constituion and government which in the democratic excitement of the times, and the bustle and confusion created by party struggles, we are in danger of forgetting. We have wished to point out the place of the executive veto in our plan of government, and incidentally to lay open and defend that plan itself. The writer of this is no political theorist, he is an American, and an American conservative both from principle and from inclination, and is opposed alike to innovations in the system of government established, and to the experimental legislation which has become so much the rage. He believes that the Constitution is too little studied, and that the real character of our institutions is too little understood and excite any of our gifted and learned young appreciated. If what he has said shall men to a more diligent study of the American constitution, his purpose will have been answered, and he will not have written in vain.
In the above essay the careless or prejudiced or prejudiced reader may perhaps seem, or affect, to discover an inclination in our author to defend the employment of the veto power, as it has been freely employed during the last twenty years, for private or party purposes. Nothing, however, could be farther from the design of the author, than to admit 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 should 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 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 prerogative of other branches of the governin the presidential veto. We therefore regard the veto as our defender against the great mischiefs that may happen from the hasty and illconsidered action of a small and virulent majority.
The Whig opposition to the too frequent employment of the veto power, is founded, not so much upon a general apprehension of the
too rapid increase of executive influence, as upon the conviction that a President elected under a pledge to use it without scruple for the ends of his own party, would effectually check all legislation during the term of his continuance in office, and so defeat the most salutary measures, passed by large and constant majorities, and evidently necessary for the defense and welfare of the country, but odious to the minority merely because they emanated from the opposition. If the Constitution intended to concentrate in the President the three functions of judicial, legislative, and executive authority, then it also intended that the veto power should be employed by the President as a means of controlling the entire legislation of the country. By simply announcing that he will veto every public measure originating with the majority, the President is able to throw the entire legislative power of the nation into the hands of his friends in the minority-a condition of things which, in this country, would end in a civil war. An unscrupulous President is able, by the use of his patronage, by threats, and by personal influence, to maintain a pretty strong minority, even in the height of his unpopularity. The means of doing this are almost always at his disposal. Our author has shown that this government is constitutionally so adjusted as to favor the majority, and to throw the weight of power into the hands of the greater number. It will not be denied by either party that in general it is right for a well-ascertained and constant majority to have the greatest weight in legislation; but to admit at the same time that the President may constitutionally exercise his veto power as a steady and constant stumbling-block to a fair majority in both houses of Congress, is to admit a power totally subversive of the ends of government, and hostile to the spirit of a republican constitution. The Whigs, therefore, have elected a President pledged, not to carry their measures against a natural majority, but pledged only not to interpose his negative against a clear and constant majority in Congress. It is the doc
trine of the Whigs, that the President is not invested with a judicial or a legislative power, and that, therefore, the less he meddles in legislation the better. If we look merely at the letter, there is, indeed, nothing written in the Constitution which directly forbids the constant partisan employment of the executive veto; but in this, as in other instances, we are obliged to study, not merely the letter, but the spirit of that document. It would have been impossible to trace the exact limits within which the veto should be employed. In all governments the employment of such a power must be left in great part to discretion, and its use be regulated by the custom of ages. Custom and usage have limited the employment of the negative of the crown in England upon acts of Parliament. The election of Whig Presidents will in the same manner fix and limit the veto power, with the sanction of public opinion in America. The entire argument is but one of many which go together to convince us that the safety and dignity of the nation depends in great measure upon the election to the executive office of great and conscientious men. "During the administration of Washington, the executive branch of the federal government, great as was its influence, never overstepped its lawful limits. So far was Washington from improperly interfering with the action of the co-ordinate branches of government, that, for example, while Congress was engaged in discussing the measures of the proposed system of finance, he strictly abstained from any expression of opinion respecting them. Wherever precedents may be found for buying congressional votes with executive promises, or making the support of executive measures by legislators the ground for rewarding them with lucrative and honorable offices, or for bringing any sort of illegitimate influence into the halls of legislation, the first President, no less pure in mind than firm in authority, set none of them."-See Article on Washington's Administration, American Review, July, 1849, pages 13-14.