Inquiry Into the Origin and Course of Political Parties in the United States

by Martin Van Buren

But I cannot allow this great constitutional question, respecting the relation which the three great departments of the Federal Government—executive, legislative, and judicial—were by the Constitution designed to occupy toward each other, to pass without farther notice. One more vitally important has not arisen nor can ever arise out of our complex and peculiar form of government, and it is also one which there is reason to apprehend has not been studied with adequate care, by many who are in other respects sufficiently astute in detecting constitutional encroachments.

General Jackson—though owing to his military employment he had not been for many years of his life much engaged in party politics—was yet, from a very early period, strongly imbued with the principles of the fathers of the republican school in regard to the objects and only legitimate purposes of Government and the true construction of the Federal Constitution. His views in these respects were sufficiently disclosed in the course of his brief services in both Houses of Congress, during the administration of Washington, and more particularly in his celebrated letter to Williamson about the year 1800.

Judge White, then his personal and political friend, followed Mr. Webster in the debate on the Veto Message and in the course of his speech laid down, in a perspicuous and satisfactory manner, the principles applicable to the question of the relative powers and duties of the several departments of the General Government which President Jackson then, as he had at all times, sustained. Deeply incensed at the gross perversions of his message, on the part of the advocates of the bank, but at all times and under all circumstances against parleying with his enemies in the midst of a battle, the President contented himself with frequent and unreserved expression of concurrence in the views which had been taken of the subject, on the floor of the Senate, by Judge White, and although reëlected under the clamor which had been raised against him upon that point, and more determined than ever to prevent, by all constitutional means, the extension of the charter of the existing bank, he was equally decided, as he had always been, not to interpose, nor did he interpose, any obstructions to the employment by it of all the means provided by the charter to conduct business to its end and to wind up its affairs after its termination.

Senator White's definition of the Constitution was expressed in the following words: "The honorable Senator argues that the Constitution has constituted the Supreme Court a tribunal to decide great constitutional questions, such as this; and that when they have done so, the question is put at rest, and every other department of the government must acquiesce. This doctrine I deny. The Constitution vests 'the judicial power in a Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish.' Whenever a suit is commenced and prosecuted in the courts of the United States, of which they have jurisdiction, and such suit is decided by the Supreme Court,—as that is the court of last resort,—its decision is final and conclusive between the parties. But as an authority it does not bind either the Congress or the President of the United States. If either of these coördinate departments is afterwards called upon to perform an official act, and conscientiously believes the performance of that act will be a violation of the Constitution, they are not bound to perform it, but, on the contrary, are as much at liberty to decline acting as if no such decision had been made.... If different interpretations are put upon the Constitution by the different departments, the people is the tribunal to settle the dispute. Each of the departments is the agent of the people, doing their business according to the powers conferred; and where there is a disagreement as to the extent of these powers, the people themselves, through the ballot-boxes, must settle it."

This is the true view of the Constitution. It is that which was taken by those who framed and adopted it, and by the founders of the Democratic party. It is one which was universally acquiesced in at the formation of the Government, and for some time thereafter. It is a matter of great moment, and one which cannot be too closely scrutinized, especially at the present moment when there is abundant reason to apprehend that heresies of a marked character in respect to it are being infused into the public mind. The principle which inculcates the necessity of distributing the powers of government among several departments, and that they should be independent of each other in the performance of the duties assigned to them by the Constitution, has united in its favor the opinions of the friends of liberty everywhere from a very early period to the present time. Montesquieu said: "There can be no liberty where the legislative and executive powers are united in the same person or body of magistrates;" or "if the power of judging be not separated from the legislative and executive powers." The American Revolution provided the fairest opportunity to test the merits of this doctrine that the world had ever seen, and it was not lost sight of by the statesmen of that day. Many of the States recorded their adherence to it on the face of their constitutions, some of which were framed and adopted flagrante bello, and all paid due respect to it in the construction of their organic laws. The settlement and ratification of the Federal Constitution carried the discussion of its merit to our national councils where, and more particularly in the discussion upon the question of ratification, the matter was very closely examined and by very able hands. The opponents of the Constitution resisted it earnestly and with ability, on the ground, amongst others, that it did not provide sufficient guarantees to protect the departments from reciprocal encroachments, and to secure the required independence of each. The difficulties, inherent in the very nature of government, of carrying those securities to an extent which would silence cavil in respect to them, obtained for this objection advantages which, in view of the well understood reverence of the people for the main principle, caused no small degree of inquietude to those able defenders of the Constitution—Madison, Hamilton, and Jay. The numbers of the "Federalist" which touch upon this point are full of interest and will well repay re-perusal. They afford the strongest evidence of an earnest adherence, on the part of those great men, to the general principle, and will, if I do not deceive myself, be found quite inconsistent with several positions which have since been taken upon the subject. In the 47th number of the "Federalist," Mr. Madison thus expresses his own views, and of course those of his associates, Hamilton and Jay, as they acted in concert: "One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim that the legislative, executive and judiciary departments ought to be separate and distinct. In the structure of the Federal Government no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.

"No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the Federal Constitution, therefore, really chargeable with this accumulation of power, or with a mixture of powers having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system".... In No. 48, speaking of the three great departments, he says: "It is equally evident that neither of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers." ... In No. 49, he notices a proposition of Mr. Jefferson to authorize a Convention upon a call of two of the three departments, for "altering the Constitution or correcting breaches of it," and says,—"The several departments being perfectly coördinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers." He then goes on to urge objections to too frequent appeals to the people in that form, and sustains the opinion that it would be better to rely on other safeguards against encroachments which he details. In Nos. 78 and 81, General Hamilton, admitting that "there is no liberty where the power of judging be not separated from the legislative and executive powers," shows at great length the comparative weakness of the judicial power, and the very slight probability that "the general liberty of the people can ever be endangered from that quarter."

The provisions of the Constitution will be searched in vain fur any which indicate a design on the part of its framers to give to one of the departments power to control the action of another in respect to its departmental duties under that instrument. All legislative power granted by the Constitution was vested in a Congress, to be composed of two Houses. The executive power of the Government was vested in a President. Specific powers to be exercised in conjunction with the Senate, as well as some in respect to which a question might arise whether they would otherwise have passed to the executive, were added, but the Constitution in respect to the legislative power, contained no limitations or restrictions. All executive authority to be exercised under it was granted to the President, and he was hence spoken of by the writers of the "Federalist" as the sole depositary of executive power. By the third article of the Constitution the same expression is used in respect to the Supreme Court, &c.: "The judicial power of the United States shall be vested in one Supreme Court and certain inferior tribunals." But as these terms would, standing by themselves, have conveyed all the judicial power of the United States to the Supreme Court, and as no such grant could be properly made because a large share of it had, in a previous part of the Constitution, been granted to a court of impeachment, of which the Supreme Court only supplied the presiding officer on a single occasion,—the trial of a President,—and was designed to be still farther restricted, the Constitution immediately proceeds to say, that "The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting, ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction, etc." No oath to support the Constitution is prescribed by it, in regard to the incumbents of the legislative or judicial branches of the Government, other than the general provision that all officers of a certain description, (which included them,) whether belonging to the Federal or State governments, should swear to support the Federal Constitution.

In regard to the executive department the case is very different. The Constitution requires from the President, and from him only, that he should, in addition to the oath of office, before he enter upon its duties, swear "that he will, to the best of his ability, preserve, protect, and defend the Constitution of the United States."

Is it not surprising that under a Constitution so constructed, exhibiting on its face such features, the idea should ever have been advanced that it was to the judicial power of the Government that its framers looked for the preservation of that sacred instrument? So far as it concerns the private rights of citizens and foreigners in questions of meum and tuum, growing out of the laws and Constitution of the United States, or controversies regarding the separate and special interests of contending States, or of the United States, and in respect to the rights of foreign ministers and consuls, it was intended to be supreme and so made, nor has its supremacy in all these respects ever been questioned. But it seems very absurd to suppose that it was intended to oblige the President of the United States,—the officer clothed with the whole executive power of the Government; the only officer, except the Vice-President, who is chosen by the whole people of the United States; the champion, designated by the Constitution itself to "preserve, protect, and defend" it in the performance of the executive duties committed to his charge,—duties affecting what Hamilton happily describes as "the general liberty of the people," to distinguish it from affairs of meum and tuum,—to keep his eye upon the Supreme Court calendar, and to gather from its decisions in respect to the private rights of parties litigant the measure of his constitutional powers, and to stop or go on in the execution of the important national offices assigned to his department as its judgments may be deemed to authorize or forbid his further proceeding. I can easily understand why a class of men, born with certain dispositions and trained to corresponding opinions, should desire such a construction of the Federal Constitution; but in the face of facts and considerations like these, I can find no explanation of the boldness with which so groundless a pretension has been advanced, other than in the recklessness by which the spirit of political encroachment is and will be characterized as long as it finds facilities for its gratification in the weakness or the passions of mankind. The deeper the subject is looked into, the more apparent to all bonâ fide searchers for truth will become the fallacy of the principle which claims for the Supreme Court a controlling power over the other departments in respect to constitutional questions. Inquirers of this description cannot fail to appreciate the difficulty, nay the impossibility of reconciling Mr. Webster's unreserved admission of the President's "undoubted right in the exercise of his functions, when a bill is presented for his approval, to consider in all cases whether such a bill be compatible with the Constitution, and whether he can approve it, consistently with his oath of office," and to approve, or refuse to approve according to the result, with his severe denunciation of him for regarding an act as unconstitutional, which had been approved by one of his predecessors, but which he, notwithstanding, conscientiously believed to be unconstitutional, and for withholding the power of the executive from the execution of any such act. Everybody knows that an act which is contrary to the Constitution is a nullity, although it may have passed according to the forms of the Constitution. That instrument creates several departments, whose duty it may become to act upon such a bill, in the performance of their respective functions. The theory of the Constitution is that these departments are coördinate and independent of each other, and that when they act in their appropriate spheres they each have a right, and it is the duty of each to judge for themselves in respect to the authority and requirements of the Constitution, without being controlled or interfered with by their co-departments, and are each responsible to the people alone who made them for the manner in which they discharge their respective duties in that regard. It is not therefore to be presumed that that instrument, after making it the President's especial duty to take an oath to preserve and uphold the Constitution and prevent its violation, intended to deny to him the right to withhold his assent from a measure which he might conscientiously believe would have that effect, and to impose upon him the necessity of outraging his conscience, by making himself a party to such a violation. The Constitution, which was framed by great men, the form of which has been so much and so justly admired, is not so imperfect nor subject to such a reproach. The matter does not necessarily end with a refusal on the part of the executive to do an act which he believes Congress had no right, under the Constitution, to require his department to perform. Although the President, representing one of the three great departments of the Government, possesses in this respect a right which neither the citizen nor any other officer or officers of the Government, not having the control of such a department, can exercise, yet if he allows himself to be governed by unworthy motives he is liable to impeachment and expulsion from office. It is in this way, or by his removal by the people, that the wrong he does to the public is redressed. But this is not all. If the act has been passed according to the forms of the Constitution, and is judged to be constitutional by the judicial department of the Federal Government, it is obligatory upon the citizens, binds and controls their private rights and personal interests, and can be carried into effect in respect to those by the judiciary, which also judges for itself regarding the constitutionality of such law. It is the department by which laws, affecting as well the private rights of the citizen as those of the States, which can be made the subjects of litigation, are carried into effect. It has ample power conferred upon it to cause its judgments and decrees to be executed. Officers are appointed whose duty it is made by law to obey its orders, and these officers have the right given to call out the civil power of their respective districts to enable them to execute judicial decrees. Nor do the rights secured to it by the Constitution stop here. If resistance is offered to the execution of a judgment or decree—made by the proper court to which jurisdiction of the matter which such judgment or decree seeks to enforce is given by the Constitution—too great to be overcome by the civil power, it is the duty of the President, upon the request of the officers of the court, to order out the military power to sustain that of the judiciary. It would be no answer on his part to such a call to say that the right which the decree or judgment seeks to enforce arises under a law which he deems unconstitutional. That is, under the circumstances, a matter that he has no right to inquire into. The decision of that question has been delegated to a different department, and has by that department been decided differently. The Constitution requires that the judgments of that department, upon subjects committed to it, should be enforced. It makes that enforcement, in extreme cases, the duty of the military. The President is intrusted with the command of that force and, in such a case, his power in regard to it is ministerial only. It is his duty, in such a case, to sustain the judicial power by the aid of the military, and if he failed in its performance he would subject himself to impeachment and removal from office. Not only is the entire power of the government thus pledged to the maintenance of judicial authority, whilst acting in the line of its duties, but there lies no appeal from its judgments or decrees. They are final and obligatory upon the rights and interests of the parties. They can neither be reversed by any other tribunal, nor is it in the power of the remaining departments of the Government united to set them aside or to treat them as a nullity, however contrary to the Constitution they may be.

We are not without experience upon this point. Our history bears indelible record of the abuse of power in that form during the administration of the elder Adams. The unconstitutionality of the Sedition Law will now be scarcely controverted by any ingenuous mind. The Supreme Court, nevertheless, decided it to be constitutional, tried citizens for having violated its provisions, and caused fines and imprisonment to be inflicted upon them. When a majority of the Senate of the United States, friends of the bank, placed upon its journal an unconstitutional act of condemnation against President Jackson, for the steps he had taken to relieve the country from that institution, the same body, after its political complexion had been sufficiently changed through the influence of an offended public sentiment, not only reversed the sentence but expunged it from the record. This it had a right to do, because both acts were committed by the same branch of the same department. But the executive and legislative departments had no such power over the unconstitutional sentences that were pronounced under the Sedition Law, because they had no right to interfere with the acts of a coördinate department. The President had an express right to pardon such offenses, and the national legislature had a constitutional right to return the money collected from those who committed them, and they did so. But the judgments of the court remained, and will forever remain, unreversed. In England, judicial convictions, attainders, judgments of forfeitures of franchises, etc., may be reversed by act of Parliament, but no such interference by one department of the government with the authorized proceedings of a coördinate department are permitted by our Constitution, simply because the great departments of our Government are by the Constitution made coördinate and independent of each other. Can any reflecting mind, in view of these facts, doubt the sufficiency of the protection which that instrument provides for the personal rights of the citizen and for private interests of every description, or for a moment apprehend the disorganization of society described by Mr. Webster as a consequence of carrying into effect the principles avowed by President Jackson?