The American Commonwealth. Viscount James Bryce
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recognize.3 Fortunately the case has been one of rare occurrence.
The president has the right of speaking to the nation by addresses or proclamations, a right not expressly conferred by the Constitution, but inherent in his position. Occasions requiring its exercise are uncommon. On entering office, it is usual for the new magistrate to issue an inaugural address, stating his views on current public questions. Washington also put forth a farewell address, but Jackson’s imitation of that famous document was condemned as a piece of vainglory. It is thought bad taste for the president to go round on a political stumping tour, and Andrew Johnson injured himself by the practice. But he retains the right of making political speeches with all the other rights of the ordinary citizen, including that of voting at federal as well as state elections in his own state. He is constantly invited to speak on nonpartisan occasions, and he is free to confer with and advise the leaders of his own party.
The position of the president as respects legislation is a peculiar one. The king of England is a member of the English legislature, because Parliament is in theory his Great Council which he summons and in which he presides, hearing the complaints of the people, and devising legislative remedies.4 It is as a member of the legislature that he assents to the bills it presents to him, and the term “veto power,” since it seems to suggest an authority standing outside to approve or reject, does not happily describe his right of dealing with a measure which has been passed by the council over which he is deemed to preside, though he now no longer appears in it except at the beginning and ending of a session. The American president is not a member of either house of Congress. He is a separate authority whom the people, for the sake of protecting themselves against abuses of legislative power, have associated with the legislature for the special purpose of arresting its action by his disapproval.5 So again the king of England can initiate legislation. According to the older Constitution, statutes purported to be made, and were till the middle of the fifteenth century actually made, by him, but “with the advice and consent of the Lords Spiritual and Temporal and of the Commons.” 6 According to the modern practice, nearly all important measures are brought into Parliament by his ministers, and nominally under his instructions. The American president cannot introduce bills, either directly or through his ministers, for they do not sit in Congress.7 All that the Constitution permits him to do in this direction is to inform Congress of the state of the nation, and to recommend the measures which his experience in administration shows to be necessary. This latter function is discharged by the messages which the president addresses to Congress. The most important is that sent by the hands of his private secretary at the beginning of each session.
George Washington used to deliver his addresses orally, like an English king, and drove in a coach and six to open Congress with something of an English king’s state. But Jefferson, when his turn came in 1801, whether from republican simplicity, as he said himself, or because he was a poor speaker, as his critics said, began the practice of sending communications in writing; and this has been followed ever since. The message usually—for besides the long one at the opening of a congressional session, others are sent as occasion requires—discusses the leading questions of the moment, indicates mischiefs needing a remedy, and suggests the requisite legislation. There are however persons in Congress who view with jealousy the action of the executive, though justified by precedent, when a bill drafted by a member of the administration is laid before either house, and as no minister sits there to explain and defend bills and there may be no majority to pass them, the message may be a shot in the air without practical result. It is rather a manifesto, or declaration of opinion and policy, than a step towards legislation. Congress need not take action; members go their own ways and bring in their own bills.
Far more effective is the president’s part in the last stage of legislation, for here he finds means provided for carrying out his will. When a bill is presented to him, he may sign it, and his signature makes it law. If, however, he disapproves of it, he returns it within ten days to the house in which it originated, with a statement of his grounds of disapproval. If both houses take up the bill again and pass it by a two-thirds majority in each house, it becomes law forthwith without requiring the president’s signature.8 If it fails to obtain this majority it drops.
Considering that the arbitrary use, by George III and his colonial governors, of the power of refusing bills passed by a colonial legislature had been a chief cause of the Revolution of 1776, it is to the credit of the Americans that they inserted this apparently undemocratic provision (which, however, existed in the Constitution of Massachusetts of 1780) in the Constitution of 1789.9 It has worked wonderfully well. Most presidents have employed it sparingly, and only where they felt either that there was a case for delay, or that the country would support them against the majority in Congress. Perverse or headstrong presidents have been generally defeated by the use of the two-thirds vote to pass the bill over their objections. Washington “returned” or vetoed two bills only; his successors down till 1830, seven. Jackson made a bolder use of his power—a use which his opponents denounced as opposed to the spirit of the Constitution; yet until the accession of President Cleveland in 1885 the total number vetoed was only 132 (including the so-called pocket vetoes) in ninety-six years.10 From 1892 to the end of Mr. Roosevelt’s second administration in 1909 there were 108 vetoes, making in all 541. In his first term Mr. Cleveland vetoed 301, the great majority being bills for granting pensions to persons who served in the Northern armies during the War of Secession. Though many of these bills had been passed with little or no opposition, two only were repassed over his veto. The only president who acted recklessly was Andrew Johnson. In the course of his three years’ struggle with Congress, he returned the chief bills passed for carrying out their Reconstruction policy, but as the majority opposed to him was large in both houses, these bills were promptly passed over his veto.
So far from exciting the displeasure of the people by resisting the will of their representatives, a president generally gains popularity by the bold use of his veto power. It conveys the impression of firmness; it shows that he has a view and does not fear to give effect to it. The nation, which has often good grounds for distrusting Congress, a body liable to be moved by sinister private influences, or to defer to the clamour of some noisy section outside, looks to the man of its choice to keep Congress in order, and has approved the extension which practice has given to the power. The president’s “qualified negative” was proposed by the Convention of 1787 for the sake of protecting the Constitution, and in particular, the executive, from congressional encroachments. It has now come to be used on grounds of general expediency, to defeat any measure which the executive deems pernicious either in principle or in its probable results.
The reasons why the veto provisions of the Constitution have succeeded appear to be two. One is that the president, being an elective and not a hereditary magistrate, is responsible to the people, and has the weight of the people behind him. The people regard him as an indispensable check, not only upon the haste and heedlessness of their representatives, the faults which the framers of the Constitution chiefly feared, but upon their tendency, a tendency whose mischievous force experience has revealed, to yield either to pressure from any section of their constituents, or to temptations of a private nature. The other reason is that a veto need never take effect unless there is a substantial minority exceeding one-third in one or other house of Congress, which agrees with the president. Such a minority shares his responsibility and encourages him to resist the threats of a majority, while if he has no substantial support in public opinion, his opposition is easily overborne. Hence this arrangement is preferable to a plan, such as that of the French Constitution of 179111 (under which the king’s veto could be overriden by passing a bill in three successive years), for enabling the executive simply to delay the passing of a measure which may be urgent, or which a vast majority of the legislature may desire. In its practical working the presidential veto power furnishes an interesting illustration of the tendency of unwritten or flexible constitutions to depart from, of written or rigid constitutions to cleave to, the letter of the law. The strict legal theory of the rights of the head of the state is in this point exactly the same in England and in America. But whereas it is now the undoubted duty of an English king to assent to every bill passed by both houses of Parliament, however strongly he may personally disapprove its provisions,12 it is the no less undoubted duty of an American president to exercise his independent judgment on every