Article 1, Section 7, Clauses 2 and 3
[Volume 2, Page 404]
Joseph Story, Commentaries on the Constitution 2:§§ 878--80, 886--891833
§ 878. The next clause respects the power of the president to approve, and negative laws. In the convention there does not seem to have been much diversity of opinion on the subject of the propriety of giving to the president a negative on the laws. The principal points of discussion seem to have been, whether the negative should be absolute, or qualified; and if the latter, by what number of each house the bill should be subsequently passed, in order to become a law; and whether the negative should in either case be exclusively vested in the president alone, or in him jointly with some other department of the government. The proposition of a qualified negative seems to have obtained general, but not universal support, having been carried by the vote of eight states against two. This being settled, the question, as to the number, was at first unanimously carried in the affirmative in favour of two thirds of each house; at a subsequent period it was altered to three fourths by a vote of six states against four, one being divided; and it was ultimately restored to the two thirds, without any apparent struggle. An effort was also made to unite the supreme national judiciary with the executive in revising the laws, and exercising the negative. But it was constantly resisted, being at first overruled by a vote of four states against three, two being divided, and finally rejected by the vote of eight states against three.
§ 879. Two points may properly arise upon this subject. First, the propriety of vesting the power in the president; and secondly, the extent of the legislative check, to prevent an undue exercise of it. The former also admits of a double aspect, viz. whether the negative should be absolute, or should be qualified. An absolute negative on the legislature appears, at first, to be the natural defence, with which the executive magistrate should be armed. But in a free government, it seems not altogether safe, nor of itself a sufficient defence. On ordinary occasions, it may not be exerted with the requisite firmness; and on extraordinary occasions, it may be perfidiously abused. It is true, that the defect of such an absolute negative has a tendency to weaken the executive department. But this may be obviated, or at least counterpoised, by other arrangements in the government; such as a qualified connexion with the [Volume 2, Page 405] senate in making treaties and appointments, by which the latter, being a stronger department, may be led to support the constitutional rights of the former, without being too much detached from its own legislative functions. And the patronage of the executive has also some tendency to create a counteracting influence in aid of his independence. It is true, that in England an absolute negative is vested in the king, as a branch of the legislative power; and he possesses the absolute power of rejecting, rather than of resolving. And this is thought by Mr. Justice Blackstone and others, to be a most important, and indeed indispensable part of the royal prerogative, to guard against the usurpations of the legislative authority. Yet in point of fact this negative of the king has not been once exercised since the year 1692; a fact, which can only be accounted for upon one of two suppositions, either that the influence of the crown has prevented the passage of objectionable measures, or that the exercise of the prerogative has become so odious, that it has not been deemed safe to exercise it, except upon the most pressing emergencies. Probably both motives have alternately prevailed in regard to bills, which were disagreeable to the crown; though, for the last half century, the latter has had the most uniform and decisive operation. As the house of commons becomes more and more the representative of the popular opinion, the crown will have less and less inducement to hazard its own influence by a rejection of any favourite measure of the people. It will be more likely to take the lead, and thus guide and moderate, instead of resisting the commons. And, practically speaking, it is quite problematical, whether a qualified negative may not hereafter in England become a more efficient protection of the crown, than an absolute negative, which makes no appeal to the other legislative bodies, and consequently compels the crown to bear the exclusive odium of a rejection. Be this as it may, the example of England furnishes, on this point, no sufficient authority for America. The whole structure of our government is so entirely different, and the elements, of which it is composed, are so dissimilar from that of England, that no argument can be drawn from the practice of the latter, to assist us in a just arrangement of the executive authority.
§ 880. It has been observed by Mr. Chancellor Kent, with pithy elegance, that the peremptory veto of the Roman Tribunes, who were placed at the door of the Roman senate, would not be reconcileable with the spirit of deliberation and independence, which distinguishes the councils of modern times. The French constitution of 1791, a laboured and costly fabric, on which the philosophers and statesmen of France exhausted all their ingenuity, and which was prostrated in the dust in the course of one year from its existence, gave to the king a negative upon the acts of the legislature, with some feeble limitations. Every bill was to be presented to the king, who might refuse his assent; but if the two following legislatures should successively present the same bill in the same terms, it was then to become a law. The constitutional negative, given to the president of the United States, appears to be more wisely digested, than any of the examples, which have been mentioned.
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§ 886. The proposition to unite the Supreme Court with the executive in the revision and qualified rejection of laws, failed, as has been seen, in the convention. Two reasons seem to have led to this result, and probably were felt by the people also, as of decisive weight. The one was, that the judges, who are the interpreters of the law, might receive an improper bias from having given a previous opinion in their revisory capacity. The other was, that the judges, by being often associated with the executive, might be induced to embark too far in the political views of that magistrate; and thus a dangerous combination might, by degrees, be cemented between the executive and judiciary departments. It is impossible to keep the judges too distinct from any other avocation, than that of expounding the laws; and it is peculiarly dangerous to place them in a situation to be either corrupted, or influenced by the executive. To these may be added another, which may almost be deemed a corollary from them, that it would have a tendency to take from the judges that public confidence in their impartiality, independence, and integrity, which seem indispensable to the due administration of public justice. Whatever has a tendency to create suspicion, or provoke jealousy, is mischievous to the judicial department. Judges should not only be pure, but be believed to be so. The moral influence of their judgments is weakened, if not destroyed, whenever there is a general, even though it be an unfounded distrust, that they are guided by other motives in the discharge of their duties than the law and the testimony. A free people have no security for their liberties, when an appeal to the judicial department becomes either illusory, or questionable.
§ 887. The other point of inquiry is, as to the extent of the legislative check upon the negative of the executive. It has been seen, that it was originally proposed, that a concurrence of two thirds of each house should be required; that this was subsequently altered to three fourths; and was finally brought back again to the original number. One reason against the three fourths seems to have been, that it would afford little security for any effectual exercise of the power. The larger the number required to overrule the executive negative, the more easy it would be for him to exert a silent and secret influence to detach the requisite number in order to carry his object. Another reason was, that even, supposing no such influence to be exerted, still, in a great variety of cases of a political nature, and especially such, as touched local or sectional interests, the pride or the power of states, it would be easy to defeat the most salutary measures, if a combination of a few states could produce such a result. And the executive himself might, from his local attachments or sectional feelings, partake of this common bias. In addition to this, the departure from the general rule, of the right of a majority to govern, ought not to be allowed but upon the most urgent occasions; and an expression of opinion by two thirds of both houses in favour of a measure certainly afforded all the just securities, which any wise, or prudent people ought to demand in the ordinary course of legislation; for all laws thus passed might, at any time, be repealed at the mere will of the majority. It was also no small recommendation of the lesser number, that it offered fewer inducements to [Volume 2, Page 406] improper combinations, either of the great states, or the small states, to accomplish particular objects. There could be but one of two rules adopted in all governments, either, that the majority should govern, or the minority should govern. The president might be chosen by a bare majority of electoral votes, and this majority might be by the combination of a few large states, and by a minority of the whole people. Under such circumstances, if a vote of three fourths were required to pass a law, the voice of two thirds of the states and two thirds of the people might be permanently disregarded during a whole administration. The case put may seem strong; but it is not stronger, than the supposition, that two thirds of both houses would be found ready to betray the solid interests of their constituents by the passage of injurious or unconstitutional laws. The provision, therefore, as it stands, affords all reasonable security; and pressed farther, it would endanger the very objects, for which it is introduced into the constitution.
§ 888. But the president might effectually defeat the wholesome restraint, thus intended, upon his qualified negative, if he might silently decline to act after a bill was presented to him for approval or rejection. The constitution, therefore, has wisely provided, that "if any bill shall not be returned by the president within ten days (Sundays excepted) after it shall have been presented to him, it shall be a law, in like manner, as if he had signed it." But if this clause stood alone, congress might, in like manner, defeat the due exercise of his qualified negative by a termination of the session, which would render it impossible for the president to return the bill. It is therefore added, "unless the congress, by their adjournment, prevent its return, in which case it shall not be a law."
§ 889. The remaining clause merely applies to orders, resolutions, and votes, to which the concurrence of both houses may be necessary; and as to these, with a single exception, the same rule is applied, as is by the preceding clause applied to bills. If this provision had not been made, congress, by adopting the form of an order or resolution, instead of a bill, might have effectually defeated the president's qualified negative in all the most important portions of legislation.
§ 890. It has been remarked by De Lolme, that in most of the ancient free states, the share of the people in the business of legislation was to approve or reject the propositions, which were made to them, and to give the final sanction to the laws. The functions of those persons, or in general, those bodies, who were entrusted with the executive power, was to prepare and frame the laws, and then to propose them to the people. In a word, they possessed that branch of the legislative power, which may be called the initiative, that is, the prerogative of putting that power into action. In the first times of the Roman republic, this initiative power was constantly exercised by the Roman senate. Laws were made populi jussu, ex authoritate senati; and, even in elections, the candidates were subject to the previous approbation of the senate. In modern times, in the republics of Venice, Berne, and Geneva, the same power is, in fact, exercised by a select assembly, before it can be acted upon by the larger assembly of the citizens, or their representatives. He has added, that this power is very useful, and perhaps even necessary, in states of a republican form, for giving a permanence to the laws, as well as for preventing political disorders and struggles for power. At the same time, he is compelled to admit, that this expedient is attended with inconveniences of little less magnitude, than the evils it is meant to remedy. The inconveniences are certainly great, but there are evils of a deeper character belonging to such a system. The natural, nay, necessary tendency of it is, ultimately to concentrate all power in the initiative body, and to leave to the approving body but the shadow of authority. It is in fact, though not in form, an oligarchy. And, so far from its being useful in a republic, it is the surest means of sapping all its best institutions, and overthrowing the public liberties, by corrupting the very fountains of legislation. De Lolme praises it as a peculiar excellence of the British monarchy. America, no less, vindicates it, as a fundamental principle in all her republican constitutions.
Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.
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