Whilst the framers of the Constitution thought, and thought wisely, that in order to give this power the practical effect they designed, it was necessary that any bill which was vetoed should be arrested, notwithstanding a majority of Congress might afterwards approve the measure; on the other hand, they restrained the power, by conferring on two-thirds of each House the authority to enact the bill into a law, notwithstanding the veto of the President. Thus the existence, the exercise, and the restraint of the power are all harmoniously blended, and afford a striking example of all the mutual checks and balances of the Constitution, so admirably adapted to preserve the rights of the States and of the people.
The last reason to which I shall advert why the veto power was adopted, and ought to be preserved, I shall state in the language of the seventy-third number of the Federalist:
“This propensity (says the author) of the legislative department to intrude upon the rights, and to absorb the powers of the other departments, has been more than once suggested. The insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon, and the necessity of furnishing each with constitutional arms for its own defence, has been inferred and proved. From these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the Executive, upon the acts of the legislative branches.”
The Executive, which is the weaker branch, in the opinion of the Federalist, ought not be left at the mercy of Congress, “but ought to possess a constitutional and effectual power of self-defence.” It ought to be able to resist encroachments on its constitutional rights.
I admit that no necessity has ever existed to use the veto power for the protection of the Executive, unless it may possibly have been in a single instance; and in it there was evidently no intention to invade his rightful powers. I refer to the “Act to appoint a day for the annual meeting of Congress.” This act had passed the Senate by a majority of 34 to 8; but when it was returned to this body by General Jackson with his objections, the majority was reversed, and the vote stood but 16 in favor to 23 against its passage.
The knowledge of the existence of this veto power, as the framers of the Constitution foresaw, has doubtless exerted a restraining influence on Congress. That body have never attempted to invade any of the high Executive powers. Whilst such attempts have been made by them to violate the rights of the States and of the people, and have been vetoed, a sense of justice, as well as the silent restraining influence which proceeds from a knowledge that the President possesses the means of self-protection, has relieved him from the necessity of using the veto for this purpose.
Mr. President, I did not think, at the time of its delivery, that the speech of the distinguished Senator from Kentucky was one of great power; though we all know that nothing he can utter is devoid of eloquence and interest. I mean only to say that I did not then believe his speech was characterized by his usual ability; and I was disposed to attribute this to the feeble state of his health and consequent want of his usual buoyancy of spirit. Since I have seen it in print, I have changed my opinion; and for the first time in my life I have believed that a speech of his could appear better and more effective in the reading than in the delivery. I do not mean to insinuate that anything was added in the report of it; for I believe it contains all the arguments used by the Senator and no more; but I was astonished to find, upon a careful examination, that every possible argument had been urged which could be used in a cause so hopeless. This is my apology for having detained the Senate so long in attempting to answer it.
[Mr. Clay observed that he never saw the speech, as written out by the reporter, till he read it in print the next morning; and, although he found some errors and misconceptions, yet, on the whole, it was very correct, and, as well as he could recollect, contained all the arguments he did make use of, and no more.]
Mr. Buchanan. I did not intend, as must have been evident to the Senator, to produce the impression that anything had been added. My only purpose was to say that it was a better speech than I had supposed, and thus to apologize to the Senate for the time I had consumed in answering it.
I shall briefly refer to two other arguments urged by the Senator, and shall then take my seat. Why, says he, should the President possess the veto power for his protection, whilst it is not accorded to the judiciary? The answer is very easy. It is true that this power has not been granted to the judiciary in form; but they possess it in fact to a much greater extent than the President. The Chief Justice of the United States and his associates, sitting in the gloomy chamber beneath, exercise the tremendous and irresponsible power of saying to all the departments of the Government, “hitherto shalt thou go, and no further.” They exercise the prerogative of annulling laws passed by Congress, and approved by the President, whenever in their opinion, the legislative authority has transcended its constitutional limits. Is not this a self-protecting power, much more formidable than the veto of the President? Two-thirds of Congress may overrule the Executive veto; but the whole of Congress and the President united, cannot overrule the decisions of the Supreme Court. Theirs is a veto on the action of the whole Government. I do not say that this power, formidable as it may be, ought not to exist: on the contrary, I consider it to be one of the wise checks which the framers of the Constitution have provided against hasty and unconstitutional legislation, and is a part of the great system of mutual restraints which the people have imposed on their servants for their own protection. This, however, I will say, and that with the most sincere respect for the individual judges; that in my own opinion, the whole train of their decisions from the beginning favors the power of the General Government at the expense of State rights and State sovereignty. Where, I ask, is the case to be found upon their records, in which they have ever decided that any act of Congress, from the alien and sedition laws until the present day, was unconstitutional, provided it extended the powers of the Federal Government? Truly they are abundantly able to protect their own rights and jurisdiction against either Congress or the Executive, or both united.