Introduction
Jackson’s veto of the bill to recharter the Bank of the United States started a momentous debate in American politics over the balance of powers among the three branches of government. Not only had Jackson’s veto rejected the precedent established in previous charters for a national bank that had been passed by Congress and signed by previous presidents, it also challenged the authority of the Supreme Court, which had upheld the constitutionality of a national bank under Congress’ power to make laws “necessary and proper for carrying into execution” its other powers (Article I, section 8). In 1832, Senator Daniel Webster responded to Jackson’s veto and its implications for the separation of powers. Webster argued that the president did not have the authority to judge the constitutionality of a law in the exercise of his veto when a precedent, like that of the national bank, had been firmly established in law. To grant that authority to the president would imply that he also had the power to ignore standing laws by simply refusing to enforce them when he thought them unconstitutional. In the end, Webster argued, Jackson’s reasoning on the veto power would ultimately nullify the president’s constitutional duty to “ faithfully enforce the law.”
—J. David Alvis and Joseph Postell
Mr. President, 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. . . .
Mr. President, 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 towards 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.
