Article 1, Section 7, Clauses 2 and 3
[Volume 2, Page 403]
James Wilson, Comparison of Constitutions, Lectures on Law1791Works 1:322--24
Perhaps the qualified negative of the president of the United States on the proceedings of the senate and house of representatives in congress, possesses advantages over an absolute negative, such as that vested in the crown of Great Britain over the proceedings of the lords and commons. To this last, recourse would not be had, unless on occasions of the greatest emergency. A determination not to interpose it without the last necessity, would prevent the exercise of it in many instances, in which it would be proper and salutary. In this manner, it would remain, like a sword always in the scabbard, an instrument, sometimes of distant apprehension, but not of present or practical utility. The exercise of the qualified negative is not an experiment of either dangerous or doubtful issue. A small bias it turns without noise or difficulty. To the operation of a powerful bias, which cannot be safely checked or diverted, it decently and leisurely gives way.
The qualified negative will be highly advantageous in another point of view: it will form an index, by which, from time to time, the strength and height of the current of publick opinions and publick movements may, with considerable exactness, be ascertained. Whenever it is exercised, the votes of all the members of both the houses must be entered on their journals. The single point, that there is a majority, will not be the only one, which will appear: it will be evinced also, how great that majority is. If it consists of less than two thirds of both houses, it seems reasonable, that the dissent of the executive department should suspend a business, which is already so nearly in equilibrio. On the other hand, if, after all the discussion, investigation, and consideration, which must have been employed upon a bill in its different stages, before its presentment to the president of the United States, and after its return from him with his objections to it, two thirds of each house are still of sentiment, that it ought to be passed into a law; this would be an evidence, that the current of publick opinion in its favour is so strong, that it ought not to be opposed. The experiment, though doubtful, ought to be made, when it is called for so long and so loudly.
Besides; the objections of the president, even when unsuccessful, will not be without their use. If the law, notwithstanding all the unfavourable appearances, which accurate political disquisition discovered against it, proves, upon trial, to be beneficial in practice; it will add one to the many instances, in which feeling may be trusted more [Volume 2, Page 404] than argument. If, on the contrary, experience shows the law to be replete with all the inconveniences, which sagacious scrutiny foresaw in its operations, the disease will no sooner appear, than the remedy will be known and applied.
Another advantage, of very general and extensive import, will flow from the qualified negative possessed by the president of the United States. His observations upon the bills and acts of the legislature will, in a series of time, gradually furnish the most valuable and the best adapted materials for composing a practical system of legislation. In every successive period, experience and reasoning will go hand in hand; and will, jointly, produce a collection of accurate and satisfactory knowledge, which could be the separate result of neither.
By the British constitution, the power of judging in the last resort is placed in the house of lords. It is allowed, by an English writer on that constitution, that there is nothing in the formation of the house of lords; nor in the education, habits, character, or professions of the members who compose it; nor in the mode of their appointment, or the right, by which they succeed to their places in it, that suggests any intelligible fitness, in the nature of this regulation. Ecclesiasticks, courtiers, naval and military officers, young men, just of age, born to their elevated station, in other words, placed there by chance, are, for the most part, the members, who compose this important and supreme tribunal. These are the men, authorized and assigned to revise and correct the decisions, pronounced by the sages of the law, who have been raised to the seat of justice on account of their professional eminence, and have employed their lives in the study and practice of the jurisprudence of their country. There is surely something, which, at least in theory, appears very incongruous in this establishment of things. The practical consequences of its impropriety are, in a considerable degree, avoided, by placing in the house of lords some of the greatest law characters in the kingdom; by calling to their assistance the opinions of the judges upon legal questions, which come before the house for its final determination; and by the great deference which those, who are uninformed, naturally pay to those, who are distinguished by their information. After all, however, there is a very improper mixture of legislative and judicial authority vested and blended in the same assembly. This is entirely avoided in the constitution of the United States.
The Works of James Wilson. Edited by Robert Green McCloskey. 2 vols. Cambridge: Belknap Press of Harvard University Press, 1967.
© 1987 by The University of Chicago