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A Constitutional History of the United States
Chapter XXXII - Jackson and the Bank. The Emergence of the Modern Presidency.
by McLaughlin, Andrew C.
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Three years and more of Jackson's first term in office had passed before
the problem of the national Bank arose and became a subject of acute and bitter
controversy. It remained, in one way or another, a subject of dispute for
years, even indeed until after his second administration and his successor in
office had come and gone. Representing the western or frontier spirit, Jackson
did not come to the presidency with any natural affection for a great moneyed
institution controlled in general by eastern capitalists. After his accession
his suspicions were augmented by party strife, but they were natural and
inevitable. Early in his administration he openly questioned the
constitutionality and expediency of the Bank,[1] and he mentioned
the subject again in his second annual message; but the friends of the Bank
seem not to have measured the strength of his real hostility. When a bill to
recharter the Bank passed Congress in the summer of 1832, the President
promptly vetoed it. The bill, returned to the Senate with the veto, did not
receive the necessary two-thirds vote, and therefore failed.
For various reasons the veto message is an interesting document. The
Bank Act of 1816, it will be remembered, had been declared constitutional by
the Supreme Court; and that, said the defenders of the Bank, settled the
matter; there was no further room for controversy. But this position Jackson
stoutly combated: "Mere precedent is a dangerous source of authority, and
should not be regarded as deciding questions of constitutional power except
where the acquiescence of the people and the States can be considered as well
settled. So far from this being the case on this subject, an argument against
the bank might be based on precedent. One Congress, in 1791, decided in favor
of a bank; another, in 1811, decided against it. One Congress, in 1815, decided
against a bank; another, in 1816, decided in its favor. Prior to the present
Congress, therefore, the precedents drawn from that source were equal. If we
resort to the States, the expressions of legislative, judicial, and executive
opinions against the bank have been probably to those in its favor as 4 to 1.
There is nothing in precedent, therefore, which, if its authority were
admitted, ought to weigh in favor of the act before me.
"If the opinion of the Supreme Court covered the whole ground of this
act, it ought not to control the coordinate authorities of this Government. The
Congress, the Executive, and the Court must each for itself be guided by its
own opinion of the Constitution. Each public officer who takes an oath to
support the Constitution swears that he will support it as he understands it,
and not as it is understood by others. It is as much the duty of the House of
Representatives, of the Senate, and of the President to decide upon the
constitutionality of any bill or resolution which may be presented to them for
passage or approval as it is of the supreme judges when it may be brought
before them for judicial decision. The opinion of the judges has no more
authority over Congress than the opinion of Congress has over the judges, and
on that point the President is independent of both. The authority of the
Supreme Court must not, therefore, be permitted to control the Congress or the
Executive when acting in their legislative capacities, but to have only such
influence as the force of their reasoning may deserve." [2]
The President commented upon the Court's decision: the Court had upheld
the Bank Act as constitutional on the ground that a bank was an appropriate
method of carrying the enumerated powers of Congress into effect; but, he
declared, inasmuch as by the Court's own statement the question of whether
Congress should use this method of exercising its power was left to the
discretion of Congress, the degree of necessity of a bank was exclusively a
matter for legislative consideration.
The outcry of the Bank's defenders was loud and prolonged; the
reverberations are distinguishable to this day — or almost to this day.
Histories and biographies dealing with the "reign of Andrew Jackson" reproduced
in later years the essence of the cartoons of a century ago representing King
Andrew as a monarch in ermine waving the veto and trampling on the
Constitution. The lampoons of Colonel Jack Downing, the popular satirist and
humorist of Jackson's day, appear to have been prolonged in sober discussions
many decades after the Bank question had passed out of memory. That Jackson was
peremptory and dictatorial, no one needs to announce or deny. He was not by
temperament or by training a legalist; he was not zealous in defending a narrow
interpretation of constitutional authority, when narrowness would interfere
with his desires. But so much of the denunciation as was based on this veto
message was in large degree unjustified and unintelligent. The denunciation of
Jackson's own time came from the partisans who were beaten and exasperated; it
was partly due to suspicion of a frontiersman and Indian-fighter, not one of
the socially elect, who dared to interpret the Constitution and oppose the
opinions of mighty statesmen like Webster and Clay.[3]
A good deal of the opposition was due to the bold announcement of
presidential authority; for in this as in other respects Jackson was exhibiting
the scope of the presidential office; he was doing much to make the presidency
what we know it to be to-day; or, if this statement be too strong, he brought
to light the scope of the office, because, relying on popular support, he was
prepared to exercise his power; and, by using his veto, he made plain that the
president occupied a position of authority as well as influence in the field of
legislation. He did not bow humbly before Congress or listen obediently to the
orators of the Senate. That he acted impetuously or even unwisely, that he too
readily entered into controversy, that he had only slight appreciation of the
delicate and intricate character of financial affairs, are probably justifiable
assertions. But these facts have little to do with the question of the legal
validity or invalidity of his conduct or with his success in maintaining the
authority and strengthening the influence of his office.
The President's veto was attacked as being unconstitutional. But his
opponents could do nothing but declaim, unless they resorted to impeachment.
The bill was vetoed, and the veto prevented the passage of the law. How then
could the veto be declared unconstitutional? It was unconstitutional, said his
opponents, because such an exercise of the veto power was not contemplated by
the framers of the Constitution. It was to be used only on extraordinary
occasions.[4] Clay complained that members frequently heard during
the progress of measures through Congress the statement that the President
would veto them, and the prospective veto was spoken of as an objection to
their passage. Jackson had no fear of his own authority and no hesitation about
using it; but the notion that he used the veto power like a swashbuckler is
rather absurd. Before the Bank bill he had vetoed only four bills; all of them
involved the old troublesome question of internal improvements; in two of these
cases the veto was a pocket veto. Twelve times in the course of eight years his
signature was withheld; of these twelve cases seven were pocket
vetoes.[5] Fifty years later Cleveland vetoed over a hundred bills
in a single year. And still, Jackson made it plain that the president held
legislative authority and was ready to use it.
The President's right to question the constitutionality of the Bank
bill, despite the Supreme Court's decision upholding the constitutional
authority of Congress to establish a bank, scarcely deserves serious discussion
in these days. On the whole, the important fact is not so much the position he
assumed as that he found it necessary to take the position at all. The
controversy at least indicates the position and the authority to which the
Supreme Court had attained under the leadership of Marshall. If we consider the
slow growth of judicial authority, it is significant that in 1832 men should
put forward a judicial decision as conclusive, not only in determining the
validity of a measure already passed, but as finally and peremptorily binding
on the legislative when a new measure is presented for passage.
Bills must receive the president's signature; and in signing or refusing
to sign he is free to follow his own judgment, as members of Congress are free
when the measure is before them. A question, possibly answered with difficulty,
would, or might be, whether the president or a congressman can constitutionally
and properly vote for a measure when a substantially identical bill has been
judicially proclaimed unconstitutional. But there would seem in principle to be
no doubt of such a right in the legislative body, which includes the president.
The propriety and wisdom of such action is a different matter and must be
decided by circumstances. Obviously, a studied determination by the legislators
to pass measures which the courts will not recognize as law may be nothing more
than a proof of obstinate stupidity; and on the whole, the important fact is
that decisions by the Supreme Court have come to be considered, as a practical
fact, determinative of what the Constitution is.
In considerable degree, the courts in their earlier opinions, when
announcing their authority to pronounce acts void, rested that authority on
their independence. In the course of time there has come, as already
said, the tendency and the common, if not quite universal, practice of
considering the principles laid down by the Supreme Court as final. Thus if we
can, because of the principle of the separation of powers, defend judicial
authority to declare acts void, we must also see that in matters of
constitutional interpretation this principle has largely broken down; or, we
may more properly say, in this case as in others, it has been modified by
practical considerations and thus made workable.[6]
A more difficult question, however, still confronts us. Did Jackson
really believe, as some of his words may imply, that a decision of the Court is
not binding on the president acting in his executive capacity? Granted that he
accepts a decision, as far as he may be called on to do so, as deciding the
particular controversy passed upon by the judicial department, is he under
obligation to consider the whole question of constitutionality settled? An
attempt to answer that inquiry would lead us into a discussion of a problem
theoretically interesting but practically of no use. The fact is, Jackson did
not carry his reasoning so far as to treat the Bank as an
outlaw.[7]
But we cannot escape quite so easily. Is there anything to be said for
Jackson's announcement of every officer's right to support the Constitution "as
he understands it"? That Jackson intended to assert the right of independent
and final judgment of every official, one may doubt, if his words are read with
their context. And of course, any such position, if commonly acted upon, would
spell confusion worse confounded. But withal it must be remembered that no one
is bound by an unconstitutional act; such an act is not law; in strictest
theory, it binds no official and no person whatever; and if no one objected to
a law, it would be difficult or impossible for a court to pass upon its
validity; an officer carrying out an unconstitutional act, before as well as
after a judicial declaration of unconstitutionality, may be held personally
liable for invasion of private liberty or property. Any private person has the
right and it may be his duty to refuse to obey an unconstitutional act; but if
he is held by the court to be wrong in concluding that an act is
unconstitutional and therefore to be disregarded, he has to take the
consequences.[8] This same principle may be applicable to the
president, but in his case the tribunal qualified to condemn him would probably
be the Senate sitting as a court of impeachment.
The portions of Jackson's veto message which are not at all technical
are quite as important as the legal argument in defense of his right to veto.
He attacked "artificial distinctions" and the granting of "gratuities, and
exclusive privileges, to make the rich richer and the potent more powerful...."
He stood for the interests of the common man and against the tendency of the
rich to use the government for their own advantage; he stood forth as the
champion of the rights of the people; they had in him a single national leader.
This was his belief, and in any attempt to see the presidential office as it
has grown to be, we must grasp the fact, vague as it may appear, that the
president's power largely rests on this direct and immediate contact with the
main body of the people. Some presidents have known how to use this
relationship effectively and thus secure power and influence commensurate with
the possibilities of the office; others have not. But nothing would be more
distinct from reality than a view of the president as a person obediently
fulfilling, as a mere executive and administrative official, the behests of
Congress. A policy plainly put forth by the president and apparently supported
by popular sympathy has, as we now know well, tremendous influence. Unluckily
for Jackson's opponents, they did not appreciate the new presidency which he
was establishing or the strength of his appeal; and they appeared to forget
that he was not only an executive but also a legislative official with a
nation-wide constituency.
But Jackson, after succeeding in the election of 1832, was not content
with victory at the polls or with his veto of the Bank bill. The Bank in his
mind was a menace; its power for mischief must be curtailed in the interest of
popular safety. In the early summer of 1833 he made a tour extending into the
northeastern states and received the degree of Doctor of Laws from Harvard
— a ceremony which gave the wits of the day a chance to display their
cleverness. He was coldly received by the rich and powerful of Boston; but
probably he did not grieve overmuch. His work lay before him. He returned to
Washington and proceeded to carry out his plans against the Bank; no longer
should it profit from the deposits of the public money in its vaults. He was
determined to strangle "this hydra of corruption". This was no sudden decision,
however; it had been in his mind for months.[9]
The Bank charter (1816) provided that the money of the United States
should be deposited in the Bank or its branches unless the secretary of the
treasury should at any time otherwise order; if such an order were issued, the
secretary should immediately lay before Congress, if in session, and if not,
immediately after the commencement of the next session, the reasons for the
order. Jackson had already found difficulty in carrying out his designs. Louis
McLane, who held the office of Secretary of the Treasury, was opposed to the
removal of the deposits — i.e., ceasing to deposit the public funds in the
Bank. In May, 1833, he was transferred to the state department, and to the
vacant secretaryship Jackson appointed William J. Duane. If the President
wished to have his policy adopted quietly, he made a serious blunder, for Duane
refused to give the desired order. As the members of the cabinet continued to
be divided in opinion, Jackson read to them a paper giving reasons for the
removal of the deposits (September 18, 1833).
This paper is a noteworthy document. It had been revised by Taney and it
revealed the skill and the acumen of an able lawyer.[10] "Upon him",
the President said, "has been devolved by the Constitution and the suffrages of
the American people the duty of superintending the operation of the Executive
Departments of the Government and seeing that the laws are faithfully executed.
In the performance of this high trust it is his undoubted right to express to
those whom the laws and his own choice have made his associates in the
administration of the Government his opinion of their duties under
circumstances as they arise." [11] He disclaimed any intention of
dictation, hoping that the facts he disclosed would produce uniformity of
opinion in the cabinet. But of most consequence was his declaration that the
proposed measure was his own. He is said to have declared, "I take the
responsibility." Certainly that was his position. Duane refused to follow the
President's advice or instructions and would not resign. Jackson dismissed him
and turned over the office to Taney, who thereupon ordered the public money to
be deposited in selected state banks and sent to Congress, when it assembled,
the reasons for his action.
When the Senate asked for a copy of the paper read to the cabinet,
already published, Jackson replied courteously but firmly that his own
self-respect and his sense of the rights secured to the executive branch of the
government constrained him to decline compliance. What he said to the "heads of
Departments acting as a Cabinet council" [12] was, he declared, no
concern of the Senate.
The heavens rang with oratory and the depths with denunciation.
Who was this man, Jackson, who was willing to defy the law and as- sume
responsibility? "We are in the midst of a revolution," declared Clay at the
beginning of a powerful speech in the Senate, "hitherto bloodless, but rapidly
tending towards a total change of the pure republican character of the
government, and to the concentration of all power in the hands of one man....
Many of our best citizens entertain serious apprehensions that our Union and
our institutions are destined to a speedy overthrow." [13] He denied
the power of the President to order removal of the deposits, declared that the
secretary of the treasury was, by the act establishing the office, constituted
the agent of Congress, and announced that the treasury department was not one
of the executive departments of the government; that department stood on a
different footing from all others.
After a winter of heated oratory and argument, the Senate adopted
(March, 1834) resolutions declaring Taney's reasons unsatisfactory and
insufficient, and "That the President, in the late Executive proceedings in
relation to the public revenue, has assumed upon himself authority and power
not conferred by the constitution and laws, but in derogation of both...." In
reply came Jackson's famous "Protest",[14] another state paper of
importance in American constitutional history. If the majority in the Senate
thought he would be incapable of prompt and effective retort, they were badly
mistaken.
The "Protest" is a vigorous announcement of presidential power, and
to-day it stands substantially unshaken. There was, however, one peculiarly
difficult point involved in the dispute: was the secretary of the treasury an
executive officer? Was he responsible to the president and subject to his
orders? There is some reason for thinking that Congress, by the act
establishing the office (1789), intended to put the office on a different plane
from that of the secretaryships of state and war.[15] It is also
possible that the first Congress in providing for the departments supposed the
system of the new government would be a decentralized system; the president
would have nothing to do with ordinary administration. In short, the national
governmental system was, by this view, if such a view were really held, to be
similar in its make-up to the state governments as we know them. In the state
system the governor has as a rule no authority to direct the ordinary
administrative conduct of the chief state officials; they are not appointed by
him; they are as a rule not removable by him.[16] They may go on
their own way regardless of his desires.
The federal executive was saved from this decentralized system partly by
the fact, doubtless, that it was not possible and apparently not intended by
the first Congress to deprive the president of control over the departments of
state and war. He has by the Constitution great authority in the conduct of
foreign affairs. He is the commander-in-chief of the army and navy, and in his
duty to see that the laws are faithfully executed it may be necessary to use
the military forces. Centralized executive and administrative authority was
also secured by the desirability or necessity of the president's having a
policy. Centralized responsibility, however, rested primarily on the authority
to appoint and to remove officials. If all executive and administrative
officials may at will be removed from office, the authority to direct their
conduct in office flows as a natural consequence; an office-holder must either
obey or retire.[17]
In the early discussions in the House (1789) the question of the
president's right to remove officers was debated in connection with the
provision for the establishment of the state department, first called the
department of foreign affairs. The debate is not easily analyzed, but the
conclusion appears to be in favor of the right to remove. In the Senate, the
vote of the vice-president in favor broke a tied vote.[18] The
practice and the assumed authority in the president has on the whole been
fairly constant; but not until 1926 was this matter fully and elaborately
discussed by the Supreme Court.[19] The decision concerning the
right of the president to remove a postmaster, appointed by him with the advice
and consent of the Senate, was given by a divided Court, with able dissent. The
decision rendered by the majority of the Court upheld the presidential right to
remove without consulting the Senate, though the dissenting justices strongly
objected to the view that the president can approve a statute and act under it
and then disregard the restriction contained in it.[20] The Court
reached this decision partly on the ground of early interpretation by Congress
(1789), partly on unbroken or practically continuous practice, partly on
independent constitutional interpretation; and it based the power, in a
measure, on the president's duty to see that the laws are faithfully
executed.
In the "Protest" so ably conceived, Jackson reminded the Senate of its
constitutional authority to sit as a court of impeachment, but he denied its
authority as an independent chamber to. declare his acts illegal. That he was
entirely justified in this announcement is questionable. No one would dare say
unhesitatingly that the Senate has no authority to pass such resolutions of
opinion as it chooses. Perhaps the only conclusion is that the senators acted
in ill temper. The Senate declared the "Protest" a breach of its privileges and
refused to enter the paper on the journals.
There is something almost amusing in the senatorial outburst of
impatience. Had the senators forgotten they were only a part of the legislative
body? Their chief duty was to pass acts; the President had authority in final
determination somewhat less than that of two-thirds of both chambers acting
separately. Not even the whole Congress, except by passing a joint resolution
over the presidential veto, could order the Secretary to replace the deposits.
The Senate was helpless; and considering its helplessness, one must not
criticize too harshly its resort to oratory.
Though the purely constitutional questions are now easily disposed of,
we should not too readily decide that they were quite so easy a century ago.
The right to dismiss an official was not a totally-assured prerogative of the
president; neither was it perfectly plain that the president could direct the
performance of certain prescribed duties. Jackson's position is of consequence
because he might have yielded; a constitutional precedent might have been
established, which, if followed, would have made it possible or obligatory for
certain departments to carry on their duties without direct responsibility to
the president. The immense powers of the presidential office were being
disclosed; we need not wonder that men, some of them passionately, others
calmly, questioned and feared.
In one further respect, Jackson assumed a position which has often been
ridiculed. He claimed to be the possessor of all executive authority not taken
from him or limited by specific restriction. But such a theory appears in some
respects not wholly at variance with modern conceptions of the presidential
office. Indeed, Hamilton's own doctrines were not substantially different; and
if we should pass on to later times, we would find support for this theory.
Theodore Roosevelt wrote in his Autobiography: "The most important
factor in getting the right spirit in my Administration, next to the insistence
upon courage, honesty, and a genuine democracy of desire to serve the plain
people, was my insistence upon the theory that the executive power was limited
only by specific restrictions and prohibitions appearing in the Constitution or
imposed by the Congress under its Constitutional powers. My view was that every
executive officer, and above all every executive officer in high position, was
a steward of the people bound actively and affirmatively to do all he could for
the people, and not to content himself with the negative merit of keeping his
talents undamaged in a napkin. I declined to adopt the view that what was
imperatively necessary for the Nation could not be done by the President unless
he could find some specific authorization to do it.... In other words, I acted
for the public welfare, I acted for the common well-being of all our people,
whenever and in whatever measure was necessary, unless prevented by direct
constitutional or legislative prohibition." [21]
Jackson's belief that he stood for the interests of the nation as a
whole, his feeling that the people gave him a mandate, and that they were the
supreme authority are apparent throughout his "Protest" and in other
pronouncements. Thus we find the spirit or fact of nationalism. There was in
existence a body of people, an authoritative body (authoritative in fact if not
in theory), not simply a coöperative system of sovereign or even partly
sovereign states; the President was the direct and immediate representative of
the whole people.
As a matter of plain fact, we only exaggerate and overemphasize when we
say that Jackson was in stark reality the first President of the American
people. How can such a statement be supported? There was a "people" in a fuller
sense than ever before; the word "people" had a new significance; it signified
the existence of a public consciousness and sense of power. The word itself, as
we now use it, is the most meaningful word in the American political
vocabulary. Furthermore, when Jackson entered the presidency a larger number of
people could actually participate in political affairs, and a larger number did
vote than in earlier years. Moreover, a much larger number voted directly for
the presidential electors, because the old system of appointment of electors by
the state legislature had been abandoned in every state save one by
1828.[22]
There had developed the feeling that a man of the people should guard
the interests of the people; the old feeling of fear of government, fear lest
government do things, fear lest individual liberty be crushed had in
considerable measure disappeared. The new state constitutions, it is true,
indicated a certain or uncertain distrust of legislative competence, but they
show also a readiness to allow the governor a considerable measure of power;
they were not afraid of him. If Jackson commonly assumed that what he wished
the people wished also, he was not far wrong. His conception of his office, his
assertion of his constitutional power, his recognition of the immediate contact
between the chief magistrate and the people, his readiness to assume
responsibility and leadership — all these give ground for calling him the
maker of the modern presidency.[23]
The removal of the deposits did not end the bank question. The state
banks scrambled for their share of the public deposits. Reckless speculation in
western lands, greedy and unintelligent banking methods, clouds of paper money,
all foretold a disastrous panic, though men, as usual, could not read the
signs. The crash came immediately after Jackson's retirement (1837), and Van
Buren had to bear the burdens of a desperate situation. The Whigs did not give
up the struggle for a national bank, and that matter did not find its end until
a Whig President, Tyler, with finely-drawn constitutional scruples, refused to
sign a bank bill that did not quite meet his requirements (September 9, 1841
).[24]
There is something almost pathetic in the sight of the heated and
partisan rancor of parties during the eight years of Jackson's presidency. It
is true, the fiscal practices of the states and the nation-at-large needed
serious and intelligent attention; but the problem was incrusted with partisan
strife. The Whig leaders were wedded to their idol and the people-at-large
would have none of it, though they did sweep a Whig President into office in
1840 on a tide of emotional resentment resulting from the hard times of the
preceding three years. They thought that in Harrison they had found a new
leader of the populace, a man like unto themselves. But Harrison died after a
brief month of office and Tyler came into the presidency, a Whig in name, but
really a strict constructionist out of sympathy with the passionate purposes of
the party.[25] There were enough troublesome problems to be solved,
above all others, the slavery problem with the constitutional and human
perplexities involved in it; but as far as party controversies went, men
vehemently debated matters which had in reality lost their vitality. Bitter
struggles there were in Congress over the slavery question, especially between
1835 to 1840, but there was little partisan strife on that subject — an
apt illustration of the way in which parties often, perhaps generally, avoid
direct difference and dispute on the greatest social problems and seem
frequently to be unaware of their existence.
It is necessary now to turn back and take up the story of the
controversy concerning the constitutional structure of the union. That story
has already been told as it appeared in the Virginia and Kentucky resolutions
of 1798, in the New England resolutions and pronouncements of the early years
of the nineteenth century, in the writings of Roane and Taylor, and in the
decisions of the Supreme Court under Marshall. We must now discuss the attempt
of John C. Calhoun and South Carolina to establish a doctrine of state
sovereignty.
[1] "Both the constitutionality and the expediency of the law
creating this bank are well questioned by a large portion of our
fellow-citizens, and it must be admitted by all that it has failed in the great
end of establishing a uniform and sound currency." Jackson's first annual
message. Richardson, Messages and Papers, II, p. 462. T. P. Abernethy
has shown that Jackson was in some respects allied with the more well-to-do and
conservative elements in Tennessee. See From Frontier to Plantation in
Tennessee.
[2] Richardson, Messages and Papers, II, pp.
581-582.
[3] "I look upon Jackson as a detestable, ignorant, reckless,
vain & malignant tyrant.... This American elective monarchy frightens me.
The experiment, with its foundations laid on universal suffrage & an
unfettered & licentious press, is of too violent a nature for our excitable
people." James Kent to Joseph Story, April 11 1834, Mass. Hist. Society
Proceedings, second series, XIV, p. 418.
[4] "The veto is an extraordinary power, which, though
tolerated by the constitution, was not expected, by the convention, to be used
in ordinary cases. It was designed for instances of precipitate legislation, in
unguarded moments.... The veto is hardly reconcileable with the genius of
representative government. It is totally irreconcileable with it, if it is to
be frequently employed in respect to the expediency of measures, as well as
their constitutionality. It is a feature of our government borrowed from a
prerogative of the British king." Henry Clay, in the Senate, July 12, 1832.
The Life and Speeches of Henry Clay (1843 ed.), II, pp. 89-90.
Complaints of this kind bring before us clearly the difference between the time
of Jackson and the last few decades. No one would now think of denouncing the
idea that the president's wishes should be considered. He is now a powerful
influence in directing the course of legislation. The desires of the president
and the possibility of a veto are always taken more or less fully into
consideration. Indeed, his plans and even the measures for which he distinctly
stands are influential, and may be compelling. This note was written, it is
well to say, before the fourth of March, 1933.
[5] E. C. Mason, The Veto Power, pp. 143-145.
[6] Ex-President Taft, questioning Jefferson, Jackson, and
Lincoln, in their assertions concerning the limitation of judicial authority,
contents himself with saying, "It is sufficient to say that the Court is a
permanent body, respecting precedent and seeking consistency in its decisions,
and that therefore its view of the Constitution, whether binding on the
Executive and the legislature or not, is likely ultimately to prevail as
accepted law." Our Chief Magistrate and His Powers, p. 138.
[7] President Johnson took steps to test the validity or the
proper interpretation of some of the provisions of the Tenure of Office Act.
[8] Webster's argument against the veto was partly taken up
with the financial or economic effects of the veto. His constitutional argument
was able; it attacked Jackson's arguments which would lead to the conclusion
that the existing Bank was established without constitutional authority. He did
not deny the President's right to veto a bill on the ground of
unconstitutionality, but he assailed Jackson's reasoning. He also said: "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." That is a clear statement of
sound principle. Works, III, p. 433. Webster attacked those portions of
the message which implied, as Webster believed, the possession of dispensing
power.
[9] It is not within the scope of this work to discuss the
question of the propriety of Jackson's conduct or the truth of his suspicions
and beliefs about the Bank. That question belongs in financial and economic
history. Furthermore, I make no pretense here of passing upon political and
personal controversies.
[10] Under Taney's hand, "it became a proper state paper and
not a 'combative Bulletin,' as Van Buren pronounced the first draft." J. S.
Bassett, The Life of Andrew Jackson, II, p. 644.
[11] Richardson, Messages and Papers, III, pp.
18-19.
[12] Ibid., III, p. 36.
[13] The Life and Speeches of Henry Clay (1843 ed.),
II, pp. 177, 179. "We behold", said Clay in a fervid peroration, "the usual
incidents of approaching tyranny. The land is filled with spies and informers;
and detraction and denunciation are the orders of the day. People, especially
official incumbents in this place, no longer dare speak in the fearless tones
of manly freemen, but in the cautious whispers of trembling slaves. The
premonitory symptoms of despotism are upon us; and if Congress do not apply an
instantaneous and effective remedy, the fatal collapse will soon come on, and
we shall die — ignobly die! base, mean, and abject slaves — the scorn
and contempt of mankind — unpitied, unwept, unmourned!" Ibid., p.
230. Webster's speeches, both on the veto message and the removal of the
deposits, are able and less melodramatic than Clay's.
[14] Richardson, Messages and Papers, III, p. 69
ff. Benjamin F. Butler, appointed Attorney-General in place of Taney,
now Secretary of the Treasury, is said to have given chief assistance on the
legal side. Bassett, op. cit., II, p. 650.
[15] For discussion, see F. J. Goodnow, Comparative
Administrative Law, I, p. 62 ff. Not until 1873 was the treasury department
defined by law as an executive department. H. B. Learned, The President's
Cabinet, p. 373. See the chapter in this work on the development of the
cabinet.
[16] The state system differs so much from state to state
that it is difficult to describe it accurately except at great length. The
outstanding fact is that the executive is decentralized. "However, although the
governor is coming to have a much larger control over that part of the state
administration created by statute, his power in most of the states is slight
over the officers of the state executive department who are elected by popular
vote or by the two houses of the state legislature." W. F. Dodd, State
Government (1922 ed.), p. 286. "In some cases constitutions expressly vest
in the governor supervision over other elective state officers. Legally these
officers are in such an independent position that, if they decline to act, the
governor's remedy is to apply to the courts to compel action, in the same
manner as a private individual may do." Ibid., p. 240. One can hardly
imagine the government of the United States with a headless executive and
administrative system. The confusion and the absence of centralized
responsibility in the state system have been productive of a number of recent
attempts at betterment. We may talk in awe-struck tones of the danger to the
cause of liberty, if authority is centralized in a single individual, a
governor or a president; but no one, probably, is now fearful that popular
government will fall because of Caesarism, based on legal authority. Nothing is
likely to discredit and endanger democracy more than a system in which there is
no sense of personal responsibility, and in which there is such complexity in
government that official responsibility cannot be easily determined.
[17] Ex-President Taft pointed out that "Congress may repose
discretion in appointees of the President, which the President may not himself
control." Our Chief Magistrate and His Powers, p. 125. But if the
president can remove an official, this principle is not of tremendous
consequence.
[18] This debate and the value of the decision, if such it
may be called, is considered at length in the opinion of the Supreme Court
rendered by Chief Justice Taft and in the opinions rendered by McReynolds and
Brandeis, two of the dissenting justices. Plainly men of wisdom may differ
concerning the meaning and value to be attributed to the discussion. Myers
v. U. S., 272 U. S. 52 (1926).
[19] Ibid.
[20] "With such power over its own creation [the office], I
have no more trouble in believing that Congress has power to prescribe a term
of life for it free from any interference than I have in accepting the
undoubted power of Congress to decree its end." Justice Holmes, dissenting.
Ibid., 177. This decision of the Court is noteworthy in that the Chief
Justice declared that certain portions of Marshall's decision in Marbury
v. Madison were either obiter, i.e., not essential parts of the
decision, or had been overruled by a later decision. He also declared that the
Tenure of Office Act of Johnson's time (to be discussed later in this work) was
unconstitutional. See the able criticism by E. S. Corwin of the Chief Justice's
opinion in the Myers case. "Tenure of Office and the Removal Power Under the
Constitution," Columbia Law Review, XXVII, p. 353 ff. For an
early case bearing on removal, see ex parte Hennen, 13 Peters 230 (1839). See
also, Parsons v. U. S., 167 U. S. 324 (1897). The decision left at least
one question not definitely decided; can the president remove officials
appointed by heads of department? But see the Hennen case, pp. 259, 260. The
comptroller general (according to the Act of 1921) is not removable by the
president. In 1935 the Court upheld an act limiting the power to remove a
federal trade commissioner.
[21] Theodore Roosevelt, An Autobiography, p. 357.
Ex-President Taft in this connection said he disagreed with his predecessor in
office. He referred to the decision of the Supreme Court in the case of the
Floyd Acceptances, 7 Wallace 666 (1869), where Justice Miller said: "The answer
which at once suggests itself to one familiar with the structure of our
government, in which all power is delegated, and is defined by law,
constitutional or statutory, is, that to one or both of these sources we must
resort in every instance. We have no officers in this government, from the
President down to the most subordinate agent, who does not hold office under
the law, with prescribed duties and limited authority." Our Chief Magistrate
and His Powers, pp. 142-144. Taft quite disagreed with Roosevelt's
authority to act as Roosevelt said he proposed to act in the crisis of the
anthracite coal strike of 1902. Ibid., pp. 145-147. But though the
spirit of Jackson was not dissimilar to that of Roosevelt, the former made no
claim of acting as he saw fit for the benefit of the people without
constitutional authority or law. He did claim his right to see that the law was
enforced and that his constitutional authority to care for the interest of the
people should be respected and obeyed. He specifically announced that he was
solicitous that he be not supposed to claim for himself or his successors any
power or authority not clearly granted by the Constitution and laws to the
president. He did not deny that Congress by law (a law that had to be signed by
the president or passed over his veto) might state exactly where money or any
other property must be placed. Such a law he must obey and see that others
obeyed it. He did deny emphatically that he could legally be deprived of his
authority over his secretaries or other officers. If the secretary of the
treasury could be removed from presidential direction, so might any other
officer, and the president would thus be left as "powerless as he would be
useless — the shadow of authority after the substance had departed."
[22] An examination of the election data in the years
following 1824 discloses the rapid development of popular interest and
participation in elections, significant of developing democracy. In 1824 the
popular vote for the presidency was about five per cent. of the population;
1828, nine and one-half per cent.; in 1832 ten per cent.; in 1844, sixteen and
one-half per cent. The data on which these figures are based are probably
sufficiently exact to justify these statements.
[23] It is desirable to refer here to the development of the
office in Washington's time, and the degree to which the President directed
foreign affairs. It is also well to notice Jefferson's activities. He brought
to light the fact or the possibility of presidential leadership.
[24] Tyler's objections do not need extended comment.
Primarily he appears to doubt the constitutionality of a bank to be engaged in
ordinary banking activities outside of the District of Columbia. "It operates
per se over the Union by virtue of the unaided and, in my view, assumed
authority of Congress as a national legislature, as distinguishable from a bank
created by Congress for the District of Columbia as the local legislature of
the District.... If this proposed corporation is to be regarded as a local bank
of the District of Columbia, invested by Congress with general powers to
operate over the Union, it is obnoxious to still stronger objections. It
assumes that Congress may invest a local institution with general or national
powers." Richardson, Messages and Papers, IV, p. 70.
[25] Jackson's term ended in 1837. Van Buren succeeded him.
Harrison was elected in 1840 in the famous log-cabin and hard-cider campaign.
In April, 1841, John Tyler of Virginia, upon Harrison's death, succeeded to the
presidency and the Whig leaders were soon disappointed and exasperated. One
thing deserves special attention, indeed more attention than I can here give to
it. Tyler assumed the presidency; he did not and would not go upon the
supposition that he was merely acting-President, that indeed he was in any way
different from an official originally chosen to the office. This assumption
established a constitutional fact. That the vice-president succeeding to the
presidency has the title of president and thus is clothed with the full dignity
of office as well as the power is in itself a matter of some
consequence.
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