THE APOLOGY OF PREROGATIVE.
Then comes the Apology of Prerogative, being nothing less than the intolerable pretension that the President can sit in judgment on Acts of Congress, and, in his discretion, refuse to execute them. This apology is in the nature of a claim of right. Let it be established, and, instead of a government of laws, which is the glory of a republic, we have only the government of a single man. Here is the one-man power with a vengeance.
Of course, if the President can sit in judgment on the Tenure-of-Office Act, and set it aside as unconstitutional, there is no Act of Congress he may not treat in the same way. He may set aside the whole succession of statutes for the government of the army; and his interview with General Emory attests his willingness to venture in that direction. In the spirit of oppression which seems to govern him, he may set aside the great statute for the establishment of civil rights without distinction of color. But why confine myself to instances? The whole statute-book will be subject to his prerogative. Vain the requirement of the National Constitution, that the President “shall take care that the laws be faithfully executed.” Vain that other requirement, that a bill approved by two thirds of both Houses over his veto “shall become a law.” His veto is perpetual; nor is it limited to any special enactment. It is as broad as the whole recorded legislation of the Republic. There is nothing it cannot hurry into that maelstrom ingulfing all.
The President considers the statute unconstitutional, say the apologists. A mistake in judgment on such a question is not an impeachable offence, add the apologists. To which I reply, that it is not for mistake in judgment, but for usurpation in undertaking to exercise his judgment at all on such a question, that he is impeached; in other words, he is impeached for undertaking to set aside a statute. Whether the statute is constitutional or not is immaterial. The President, after the statute has become a law, is not the person to decide.
Ingenuity seeks to perplex the question by putting impossible cases. For instance, suppose Congress should have lost its wits so far as to enact, in direct terms, that the President should not be commander-in-chief of the army and navy, or that he should not have the power to grant pardons; and suppose, still further, that Congress, in defiance of positive inhibition, should undertake to create “titles of nobility”; must not the President treat such enactments as unconstitutional? Of course he must; but such instances do not help the prerogative now claimed. Every such enactment would be on its face unconstitutional. It would be an act of unreasoning madness, which President as well as Court must disregard as if plain nonsense. Its unconstitutionality would be like an axiom, not to be questioned. No argument or authority is needed. It proves itself. Nor would the duty of disobedience be less obligatory, even if the enactment were sanctioned by the Supreme Court: and it is not more violent for me to suppose it sanctioned by the Supreme Court than for the apologists to suppose it sanctioned by Congress. The enactment would be a self-evident monstrosity, and therefore to be disobeyed, as if one of the Ten Commandments were reversed so as to read, “Thou shalt kill.” Such extreme cases serve no purpose. The National Constitution is the supreme law of the land, and the people will not allow its axiomatic requirements to be set aside. An illustration outside the limits of reason is of no value.
In the cases supposed, the unconstitutionally of the enactment is axiomatic, excluding opinion or argument. It is matter of fact, and not matter of opinion. When the case is one on which there are two sides or two different views, it is then within the domain of argument. It is in no sense axiomatic. It is no longer matter of fact, but matter of opinion. When submitted to the Supreme Court, it is for their “opinion.” Without occupying time with refinements, I content myself with asserting that the judgment of the Court must be matter of opinion. One of the apologists has asserted that such a judgment is matter of fact, and, generally, that the constitutionality of a statute is matter of fact. I assert the contrary. When a bench of judges stands five to four, shall we say that the majority declare a “fact,” and the minority declare an “opinion”?
Assuming, then, what I think will not be denied, that the constitutionality of a statute is matter of opinion, the question occurs, What opinion shall be regarded for the time as decisive? Clearly the opinion of Congress must control all executive officers, from the lowest to the President. According to a venerable maxim of jurisprudence, all public acts are presumed to be correct,—Omnia rite acta præsumuntur. A statute must be presumed constitutional, unless on its face the contrary; and no decision of any court is required in its favor. It is the law of the land, and must be obeyed as such. The maxim which presumes constitutionality is just as binding as the analogous maxim of the Criminal Law which presumes innocence. The President, reversing all this, presumes the statute unconstitutional, and acts accordingly. In the name of Prerogative he sets it aside.
The apologists have been driven to invoke the authority of President Jackson, who asserted for himself the power to judge the constitutionality of an Act of Congress which in the course of legislation required his approval, although the question involved had been already adjudged by the Supreme Court. And he was clearly right. The Court itself would not be bound by its adjudication. How could it constrain another branch of the Government? But Andrew Jackson never put forth the pretension that it was within his prerogative to nullify a statute which had been passed over his veto in the way prescribed by the National Constitution. He was courageous, but there was no such unconstitutional audacity in his life.
The apologists also summon to their aid those great instances where conscientious citizens have refused obedience to unjust laws. Such was the case of Hampden, who set an example for all time in refusing to pay ship-money. Such also was the case of many in our own country, who spurned the Fugitive Slave Bill. These exalted characters, on their conscience, refused to obey the law, and suffered accordingly. The early Christians were required by imperial mandate to strew grain on the altar of Jove. Though good citizens, they preferred to be martyrs. Such a refusal can be no apology for a President, who, in the name of prerogative, breaks the great oath to see that the laws are faithfully executed. Rather do these instances, in their moral grandeur, rebuke the offender.