Veto! the Jacksonian Revolution in Constitutional Law

• Publication year: 2021
• Citation: Vol. 78

78 Nebraska L. Rev. 205. Veto! The Jacksonian Revolution in Constitutional Law

205

Gerard N. Magliocca*

Veto! The Jacksonian Revolution in Constitutional Law

TABLE OF CONTENTS

I. Introduction .......................................... 206
II. Vetoes in the Early Republic .......................... 213
A. The Founding Vision ................................ 213
B. Practice of Presidents Before Jackson .............. 214
C. Madison's Veto of the Second Bank of the United
States ............................................. 216
III. Constraints On Jackson's Veto Adaptatation ............ 220
A. Precedential Interpretation in the Regime of
Marshall and Madison................................ 220
B. Legislative Supremacy .............................. 222
C. The Possibility of Presidential Transformation ..... 223
IV. Transformation and Dynamic Institutional Interaction:
Andrew Jackson ........................................ 226
A. Changing Lanes Along the Maysville Road ............ 226
B. Throwing Down the Gauntlet: The Bank Veto .......... 230
C. Censure of the President-Constitutionality ......... 236
D. Censure of the President-The Merits ................ 242
E. Protest ............................................ 245
F. Transformational Aspirations Confirmed ............. 247
V. Consolidation and Popular Ratification: John Tyler .... 250
A. The Constitutional Significance of William H.
Harrison ........................................... 251
B. And Tyler Too ...................................... 252
C. Climax of the Veto Controversy ..................... 255
D. The Dust Settles ................................... 260
VI. Conclusion ............................................ 262

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[T]he majority of the committee believe that the case has occurred

. . . contemplated by the founders of the Constitution by the grant

to the House of Representatives of the power to impeach the

President. . . .

. . . In the mean time, the abusive exercise of the

constitutional power of the President to arrest the action of

Congress upon measures vital to the welfare of the people, has

wrought conviction upon the minds of a majority of the committee,

that the veto power itself must be restrained and modified by an

amendment of the Constitution . . . .

House Select Committee on the Veto of the Provisional

Tariff(fn1) [The committee] has assailed my whole official conduct

without the shadow of a pretext for such assault . . . .

. . . .

. . . I represent the executive authority of the people of the United

States, and it is in their name . . . that I protest against every

attempt to break down the undoubted constitutional power of this

department . . . .

Protest Message of President John Tyler (fn2)

I. INTRODUCTION

Constitutional lawyers are paid to masquerade as historians. Even for non-originalists, a debate about our fundamental principles would be inconceivable without some references to the musings of Thomas Jefferson, the essays in The Federalist, or the deliberations of the Constitutional Convention. On certain occasions, the legal canon expands to include Reconstruction and the events surrounding the adoption of the Fourteenth Amendment. But these narrow slices of the past comprise virtually all of the history judges and scholars ordinarily consult for constitutional guidance.(fn3)

Parsimony is not without its virtues. Lawyers are specialists in reading texts, not in interpreting historical events. Since most of our Constitution's text was produced during the Founding and Reconstruction, the inclination to grant these two historical periods a monopoly over constitutional interpretation is understandable. Like all monopolies, this generates stability at the expense of knowledge. Text and the history surrounding the authorship of text, however, are not the sine qua non of momentous constitutional change. Recent scholarship has shown how the New Deal ushered in a doctrinal revolution-following the Supreme Court's "switch in time" in the face of Franklin D. Roosevelt's Court-packing plan-without a formal constitutional amendment.(fn4) To understand the New Deal transformation, as well as

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the evolution of other constitutional principles, we must often go beyond the privileged history of the Founding and Reconstruction. The poverty of the historical canon in constitutional law was manifestly clear in the recent national discussion over President Clinton's actions during the Monica Lewinsky affair. In contrast to the rich discourse that accompanied the House debate and Senate trial on the articles of impeachment, the much-heralded alternative of censure generated more constitutional heat than light. Most Republicans- particularly in the House of Representatives-asserted that a congressional censure of the president would violate the principle of separation of powers and was therefore not an option. Democrats, on the other hand, generally responded that censure was a legitimate remedy for presidential malfeasance that did not rise to the level of a high crime and misdemeanor. Although the refusal of the House leadership to allow a floor vote on censure was probably critical in persuading wavering members to support impeachment, neither the President's supporters nor his detractors provided much authority to support their constitutional conclusions about censure. In particular, both sides failed to grapple with the only relevant precedent-the censure of President Andrew Jackson by the Senate in 1834. (fn5)

The omission of any significant discussion about the Jacksonian censure during the Clinton impeachment saga stems from one simple fact: Lawyers have never considered Jacksonian Democracy part of the authoritative historical canon, and hence they are unfamiliar with the constitutional arguments that framed the nineteenth-century censure debate. Moreover, Andrew Jackson was censured for political actions, unlike Bill Clinton's alleged criminal conduct, and Jackson's censure comprised just one aspect in a wider institutional struggle far removed from modern legal discourse.

This article challenges the exclusion of Jacksonism from the constitutional pantheon and begins a critical reexamination of the profound structural and doctrinal changes wrought by that movement between

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1828 and 1842. (fn6) Although many facets of the Jacksonian experience merit careful reflection, this analysis focuses primarily on Jackson's revolutionary use of the veto power to transform the presidency into an organ capable of bringing about major constitutional change without an Article V amendment.

In the course of reinterpreting the legal landmarks thrown up by Jacksonian Democracy-including the veto of the Second Bank of the United States and the Censure Resolution-this article advances four claims. First, Jackson's vetoes were crucial to reinvigorating the presidency after a long period of congressional dominance. Second, Jackson's veto practice broke sharply with precedent by repudiating the notion that presidents could not legitimately challenge established constitutional principles. Third, the hostile congressional reaction to the vetoes raining down upon them was, in fact, a stalking horse for a broader dialogue about the legitimacy of presidential efforts to alter the Constitution without a formal Article V amendment. In this respect, Jacksonian Democracy was a precedent for FDR's more expansive use of the presidency during the New Deal. Finally, the evidence suggests that but for the accident of President William Henry Harrison's death, Jackson's transformation would have culminated in the reversal of McCulloch v. Maryland (fn7) by the Supreme Court.(fn8)

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Hardly anyone bothers to ask what kind of presidential veto is legitimate today since the answer is obvious-any kind.(fn9) In the 1830s and 1840s, however, the constitutional legitimacy of the veto power stirred fiery debate. Since there is no evidence that the veto was a source of concern before Jackson came along,(fn10) commentators seeking to explain the passionate response against the vetoes of Andrew Jackson and John Tyler have resorted to a brusque dismissal of the participants' sincerity.(fn11) Edward S. Corwin, the dean of constitutional scholars on the presidency, sarcastically categorized the veto controversy as an example of "the early talent of Americans for conjuring up constitutional limitations out of thin air."(fn12)

While bad faith provides a plausible answer to the veto debate, it unfairly condemns an entire generation of statesmen, including Henry Clay, Daniel Webster, and John Quincy Adams, who saw Jackson's innovations as a grave threat to constitutional liberty. Charles L. Black, Jr. believed "[w]e act at our great peril when we consider 'absurd' something which seemed not at all absurd to John Quincy Adams," (fn13) and Black was right. The veto contest between Congress and the executive was crucial in shaping President Jackson's vision to overhaul the Constitution without an Article V amendment.(fn14)

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The relationship between the presidential veto and constitutional transformation led from the White House can be stated this way: A president seeking to advance his constitutional agenda without congressional support quickly discovers that the veto is the only formal mechanism available to formulate and mobilize popular support for that agenda.(fn15) To the extent that the legitimacy of constitutional change initiated by the president is resisted, it follows that the veto power itself will become a focal point for the opposition, notwithstanding its innocuous prior history.

Applying this hypothesis to Jackson assumes that he actually sought to transform the Constitution with his vetoes. Much of this article is devoted to...