Reply to Jackson’s Veto Message

Image: Daniel Webster. Harding, Chester. (1828) National Portrait Gallery.
The Judiciary
Should presidents, as Webster argued, be bound by the constitutional interpretations of past Congresses, presidents, and courts? If a president sincerely believes that a previous interpretation was constitutionally incorrect and followed it because of Webster’s reasoning, would he violate his oath of office?
Webster contended that Jackson was claiming a universal power. How would you describe the power that he was ascribing to the Supreme Court?

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Daniel Webster (1782–1852), a senator from Massachusetts, had helped lead the effort in Congress to recharter the Second Bank of the United States. The day following Jackson’s veto of the bank recharter, Webster responded in the Senate. Notably, Webster had also served as a lawyer for the First Bank of the United States in McCulloch v. Maryland, in which the Supreme Court had found the federal government’s original chartering of the bank constitutional. Webster supported a strong federal government, and his reasoning was adopted by the Court.

In his reply to Jackson’s veto message, Webster acknowledged that the president had the power to veto bills on policy grounds, but he disagreed with Jackson’s claim that he had the authority to reject the bill on constitutional grounds. In doing so, Webster initially presented a position much like departmentalism—the idea that all three branches of the federal government have both the power and the duty to interpret the Constitution. But Webster denied that the president had the power to veto a law on constitutional grounds once Congress had passed it and the president had signed it. By rejecting the constitutional reasoning of Congress, past presidents, and the Supreme Court, Webster claimed, Jackson was asserting a “universal power” that was “pure despotism.” (Even if Webster’s reasoning was correct, Jackson had vetoed a new law, not the one from 1816.) After a bill is passed and signed, Webster insisted, questions of constitutionality are solely within the province of the Court. Thus, Webster ended up articulating a position that gave the Supreme Court the final say on matters of constitutionality

—Joshua Dunn

Source: Daniel Webster, “The Bank Veto,” U.S. Congressional Documents and Debates, 1774–1875, Senate, 22nd Congress, 1st session,

No one will deny the high importance of the subject now before us. Congress, after full deliberation and discussion, has passed a bill, by decisive majorities, in both houses, for extending the duration of the Bank of the United States. It has not adopted this measure until its attention had been called to the subject in three successive annual messages of the president. The bill having been thus passed by both houses, and having been duly presented to the president, instead of signing and approving it, he has returned it with objections. These objections go against the whole substance of the law originally creating the bank. They deny, in effect, that the bank is constitutional; they deny that it is expedient; they deny that it is necessary for the public service.

It is not to be doubted that the Constitution gives the president the power which he has now exercised; but while the power is admitted, the grounds upon which it has been exerted become fit subjects of examination. The Constitution makes it the duty of Congress, in cases like this, to reconsider the measure which they have passed, to weigh the force of the president’s objections to that measure, and to take a new vote upon the question. . . .

. . . But if the president thinks lightly of the authority of Congress in construing the Constitution, he thinks still more lightly of the authority of the Supreme Court. He asserts a right of individual judgment on constitutional questions, which is totally inconsistent with any proper administration of the government, or any regular execution of the laws. Social disorder, entire uncertainty in regard to individual rights and individual duties, the cessation of legal authority, confusion, the dissolution of free government—all these are the inevitable consequences of the principles adopted by the message, whenever they shall be carried to their full extent. Hitherto it has been thought that the final decision of constitutional questions belonged to the supreme judicial tribunal. The very nature of free government, it has been supposed, enjoins this; and our Constitution, moreover, has been understood so to provide, clearly and expressly. It is true that each branch of the legislature has an undoubted right, in the exercise of its functions, to consider the constitutionality of a law proposed to be passed. This is naturally a part of its duty; and neither branch can be compelled to pass any law, or do any other act, which it deems to be beyond the reach of its constitutional power. The president has the same right, when a bill is presented for his approval, for he is, doubtless, bound to consider, in all cases, whether such bill be compatible with the Constitution, and whether he can approve it consistently with his oath of office. But when a law has been passed by Congress, and approved by the president, it is now no longer in the power, either of the same president or his successors, to say whether the law is constitutional or not. He is not at liberty to disregard it; he is not at liberty to feel or to affect “constitutional scruples,” and to sit in judgment himself on the validity of a statute of the government, and to nullify it, if he so chooses. After a law has passed through all the requisite forms; after it has received the requisite legislative sanction and the executive approval, the question of its constitutionality then becomes a judicial question, and a judicial question alone. In the courts that question may be raised, argued, and adjudged; it can be adjudged nowhere else.

The president is as much bound by the law as any private citizen, and can no more contest its validity than any private citizen. He may refuse to obey the law, and so may a private citizen; but both do it at their own peril, and neither of them can settle the question of its validity. The president may say a law is unconstitutional, but he is not the judge. Who is to decide that question? The judiciary alone possesses this unquestionable and hitherto unquestioned right. The judiciary is the constitutional tribunal of appeal for the citizens, against both Congress and the Executive, in regard to the constitutionality of laws. It has this jurisdiction expressly conferred upon it, and when it has decided the question, its judgment must, from the very nature of all judgments that are final, and from which there is no appeal, be conclusive. Hitherto, this opinion, and a correspondent practice, have prevailed, in America, with all wise and considerate men. If it were otherwise, there would be no government of laws; but we should all live under the government, the rule, the caprices, of individuals. If we depart from the observance of these salutary principles, the executive power becomes at once purely despotic; for the president, if the principle and the reasoning of the message be sound, may either execute or not execute the laws of the land, according to his sovereign pleasure. He may refuse to put into execution one law, pronounced valid by all branches of the government, and yet execute another, which may have been by constitutional authority pronounced void. On the argument of the message, the president of the United States holds, under a new pretense and a new name, a dispensing power over the laws as absolute as was claimed by James the Second of England, a month before he was compelled to fly the kingdom. That which is now claimed by the president is in truth nothing less, and nothing else, than the old dispensing power asserted by the kings of England in the worst of times; the very climax, indeed, of all the preposterous pretensions of the Tudor and the Stuart races.

According to the doctrines put forth by the president, although Congress may have passed a law, and although the Supreme Court may have pronounced it constitutional, yet it is, nevertheless, no law at all if he, in his good pleasure, sees fit to deny it effect; in other words, to repeal and annul it. No president and no public man ever before advanced such doctrines in the face of the nation. There never before was a moment in which any president would have been tolerated in asserting such a claim to despotic power. After Congress has passed the law, and after the Supreme Court has pronounced its judgment on the very point in controversy, the president has set up his own private judgment against its constitutional interpretation. It is to be remembered, Sir, that it is the present law, it is the act of 1816, it is the present charter of the bank, which the president pronounces to be unconstitutional. It is no bank to be created, it is no law proposed to be passed, which he denounces; it is the law now existing, passed by Congress, approved by President Madison, and sanctioned by a solemn judgment of the Supreme Court, which he now declares unconstitutional, and which, of course, so far as it may depend on him, cannot be executed.

If these opinions of the president be maintained, there is an end of all law and all judicial authority. Statutes are but recommendations, judgments no more than opinions. Both are equally destitute of binding force. Such a universal power as is now claimed for him, a power of judging over the laws and over the decisions of the judiciary, is nothing else but pure despotism. If conceded to him, it makes him at once what Louis the Fourteenth proclaimed himself to be when he said, “I am the State.”. . .

. . . According to that mode of construing the Constitution which was adopted by Congress in 1791, and approved by Washington, and which has been sanctioned by the judgment of the Supreme Court, and affirmed by the practice of nearly forty years, the question upon the constitutionality of the bank involves two inquiries. First, whether a bank, in its general character, and with regard to the general objects with which banks are usually connected, be, in itself, a fit means, a suitable instrument, to carry into effect the powers granted to the government.

If it be so, then the second, and the only other question is, whether the powers given in a particular charter are appropriate for a bank. If they are powers which are appropriate for a bank, powers which Congress may fairly consider to be useful to the bank or the country, then Congress may confer these powers; because the discretion to be exercised in framing the constitution of the bank belongs to Congress. One man may think the granted powers not indispensable to the particular bank; another may suppose them injudicious, or injurious; a third may imagine that other powers, if granted in their stead, would be more beneficial; but all these are matters of expediency, about which men may differ; and the power of deciding upon them belongs to Congress.

I again repeat, sir, that if, for reasons of this kind, the president sees fit to negative a bill, on the ground of its being inexpedient or impolitic, he has a right to do so; but remember, sir, that we are now on the constitutional question. Remember, that the argument of the president is that because powers were given to the bank by the charter of 1816 which he thinks unnecessary, that charter is unconstitutional. Now, sir, it will hardly be denied, or rather it was not denied or doubted before this message came to us, that if there was to be a bank, the powers and duties of that bank must be prescribed in the law creating it. Nobody but Congress, it has been thought, could grant these powers and privileges, or prescribe their limitations. It is true, indeed, that the message pretty plainly intimates that the president should have been first consulted, and that he should have had the framing of the bill; but we are not yet accustomed to that order of things in enacting laws, nor do I know a parallel to this claim, thus now brought forward, except that in some peculiar cases in England, highly affecting the royal prerogative, the assent of the monarch is necessary, before either the House of Peers, or His Majesty’s faithful Commons, are permitted to act upon the subject, or to entertain its consideration. But supposing, sir, that our accustomed forms and our republican principles are still to be followed, and that a law creating a bank is, like all other laws, to originate with Congress, and that the president has nothing to do with it till it is presented for his approval, then it is clear that the powers and duties of a proposed bank, and all the terms and conditions annexed to it, must, in the first place, be settled by Congress. This power, if constitutional at all, is only constitutional in the hands of Congress. Anywhere else, its exercise would be plain usurpation. . . .

We have arrived at a new epoch. We are entering on experiments, with the government and the Constitution of the country, hitherto untried, and of fearful and appalling aspect. This message calls us to the contemplation of a future which little resembles the past. Its principles are at war with all that public opinion has sustained, and all which the experience of the government has sanctioned. It denies first principles; it contradicts truths heretofore received as indisputable. It denies to the judiciary the interpretation of law, and claims to divide with Congress the power of originating statutes. It extends the grasp of executive pretension over every power of the government. But this is not all. It presents the chief magistrate of the Union in the attitude of arguing away the powers of that government over which he has been chosen to preside; and adopting for this purpose modes of reasoning which, even under the influence of all proper feeling toward high official station, it is difficult to regard as respectable. . . .

Such is this message. It remains now for the people of the United States to choose between the principles here avowed and their government. These cannot subsist together. The one or the other must be rejected. If the sentiments of the message shall receive general approbation, the Constitution will have perished even earlier than the moment which its enemies originally allowed for the termination of its existence. It will not have survived to its fiftieth year.

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