Cato V, Part XXIX: The Same Causes, contd.

Jackson’s expected veto of the re-charter bill came three days after its approval in the House on July 10^th, 1832. The plain fact of it was not in the least bit surprising. Notwithstanding the earlier assurances of people close to Jackson that he was unlikely to attempt completely destroying the Bank given its widespread popularity, his ideological opposition to the very concept of central banking had never really been in doubt. What was surprising – from the perspective of constitutional law, at least – was the explanation he offered in addition to his stamp of denial. Previous presidents, when they made use of the veto power granted to them by Article I, Section 7 of the Constitution, did so explicitly out of concern that the legislation in question was unconstitutional. This was originally made explicit by George Washington when he vetoed the first version of the Apportionment Act in April of 1792 and was repeated most recently by James Monroe when he vetoed the Cumberland Road Bill in March of 1822. Jackson himself had initially followed this example when he vetoed two other road bills in May of 1830, but his approach to negating the Second Bank re-charter bill was markedly novel. He did believe, for the record, that the creation of the Second Bank of the United States by Congress in 1816, and its attempted re-charter by Congress in 1832, were unconstitutional. Congress may indeed have possessed the theoretical authority to create a national bank, he wrote, but nothing in the Constitution gave a particular group of legislators the right to prevent their successors from either dissolving that same institution or chartering additional banks as they saw fit.

Where the logic of Jackson’s veto message ultimately differed from the norm was in his assertion as to why his opinion of a given law’s constitutional legitimacy should have made any difference at all to its coming into force. The Supreme Court had already ruled in its decision in MuCulloch v. Maryland (1819) that Congress did indeed possess the constitutional authority to charter a national bank. The implications of the Necessary and Proper Clause granted it this power, the majority opinion declared, and it made no difference if the states took issue with the result or not. But while the authority of the Supreme Court to make such declarations had by that time been well established – pursuant, of course, to the principle of judicial review as established in Marbury v. Madison (1803) – Jackson nevertheless proceeded to affirm a different doctrine altogether in his message accompanying the veto of the Bank bill. “The Congress, the Executive, and the Court [,]” he asserted,

Must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

There would seem to be at least two points particularly worth noting from within this bizarre interpretation of American constitutionalism. The first is Jackson’s apparent disregard for the relationships which then existed between the various branches of the contemporary federal government. Since Marbury v. Madison, every Congress and every President had acknowledged and respected the unique authority of the Supreme Court to review state and federal legislation for their conformity to the text of the United States Constitution. More to the point, no Congress and no President since Marbury had ever attempted to assert that their interpretation of the Constitution was as valid and as binding as that of the Supreme Court. Jackson’s assertion to the contrary – that Congress and the President could determine for themselves whether a given law was constitutional or not – was accordingly lacking in any kind of precedent. Given that the United States follows the English Common Law tradition – wherein precedent is paramount – this presented something of a quandary. If Jackson was right, and the various branches of the federal government had always been free to interpret the Constitution on their own initiative, why had the Supreme Court alone exercised the authority to do so? Given the preponderance of examples whereby the Court invalidated a state or federal law and Congress and the President abided by the result, why should anyone call into question the concomitant balance of authority? What did Jackson have on his side that might have shed light on the origins of his conviction besides a vested interest in the outcome of the present struggle? In point of fact, the President could produce no evidence at all to support his extraordinary claim, nor give any reason at all why the present instance should have given rise to such a drastic reform of constitutional procedure while no past instance ever had.     

  

The second element of the cited passage from Jackson’s veto message whose implications ought to give anyone pause was the President’s alarmingly use of an otherwise innocuous phrase. Affirming, as seemed to be his primary objective, the supposedly equal right of Congress and the President to judge of the constitutionality of a given piece of federal legislation, Old Hickory notably declared that, “The authority of the Supreme Court must not […] be permitted to control the Congress or the Executive when acting in their legislative capacities [.]” The term “legislative capacities” is the object at issue. The United States Congress naturally possesses a number of legislative responsibilities. Not only is it responsible for passing regular statutes – i.e. laws regulating this, defining that, or generally permitting or prohibiting a given individual or corporate action – but it may also levy taxes, establish government departments, and conduct investigations. The Executive, by contrast, isn’t traditionally thought of as a legislative body. On the contrary, and by most conventional interpretations, the Executive Branch is not supposed to attempt to accomplish anything more beyond executing the laws of the land. Presidents that meddle in the prerogatives of Congress accordingly tend to be stoutly rebuffed, such attempts being roundly declared to be unconstitutional. The presidential veto might perhaps be interpreted as something of an exception, allowing a President, as it does, to weigh in on the legislative process in a very profound sort of way. Upon consideration, there would indeed seem to be arguments on both sides.

On one hand, because the President is subject to election by the American people as a whole while the various members of Congress stand for election in discreet districts or within the states, it might reasonably be argued that the presidential veto represents a third layer of legislation discretion beyond that offered by the House and the Senate. Whereas the House stands in for the American people as members of specific geopolitical communities, and the Senate stands in for the American people as organized into the various states, the President might conceivably be said to stand in for the American people as an undifferentiated mass. Indeed, the President would seem to be the only office within any branch of any government in the United States of America that could reasonably claim to perform this function. Bearing this in mind, it might in fact be the case the that Executive Branch of the United States government does – and did, in 1832 – possess at least one “legislative capacity,” to be exercised with as much discretion as those of the House or the Senate. The only problem with this interpretation of the significance of the presidential veto, of course, is that it is plainly not what the Framers intended.

This isn’t to say, of course, that the meaning intended by the Framers should in all cases override the meaning held by those of us who yet live and breathe. A wise man – albeit one who did not always heed his own advice – once keenly observed on this very subject that, “It is ultimately the provisions of our laws, rather than the principal concerns of our legislators, by which we are governed.” That being said, where the intentions of the Framers as to a given aspect of their work are clear and explicable, prudence would seem to dictate that they be afforded their just and proper weight. Bearing that in mind, certain excerpts from the debates which took place over the course of the Philadelphia Convention on the subject of the executive veto – as recorded by Virginia delegate James Madison, no less – would seem to warrant consideration. Specifically, it is the debate that took place on September 12^th, 1787 which merits scrutiny at the present moment. The discussion at hand between the assembled delegates concerned the relative strengths and weaknesses of either a 2/3 or a 3/4 majority for the purpose of overriding an executive veto. Some, like New Yorkers Alexander Hamilton (1755-1804) and Gouverneur Morris (1752-1816), believed that 2/3 was insufficient to prevent Congress from coming to dominate the office of President. Others, like South Carolina’s Charles Pinckney (1757-1824) and the aforementioned James Madison, held to the opposite view, arguing that a threshold of 3/4 would place too much power in the hands of too few people to impede the proper function of the proposed national government. In the end, of course, the issue was settled in favor of a 2/3 majority, at which point the discussion moved on. But in the moment, as each side sought to clarify their respective positions, two delegates in two separate comments made it known quite clearly the specific functions which they intended the existence of the veto to perform.

The first of these comments was submitted by Massachusetts delegate Elbridge Gerry (1744-1814), future Vice-President and namesake of the term “Gerrymander.” Evidently seeking to remind his colleagues of the nature of the object over which they disagreed, he helpfully explained to all those present that, “The primary object of the revisionary check of the President is not to protect the general interest, but to defend his own department.” The second comment, offered shortly thereafter by Madison himself, echoed this sentiment while adding an additional stipulation. “The object of the revisionary power is twofold [,]” Madison affirmed. “1. to defend the Executive Rights 2. to prevent popular or factious injustice.” Granting that the discussion at hand was not concerned with the nature and purpose of the executive veto as much as it was with the conditions under which the same might be overturned, it is nonetheless worth remarking upon that no one present disagreed with either of these descriptions. In consequence, while there might not have existed a consensus amongst the assembled delegates as to the mechanics by which the executive veto was bound to operate, there seems to have been complete agreement as to the functions that it was supposed to perform. On the one hand, as per Gerry and Madison, it was intended to aid the Executive Branch in protecting itself from having its rights and responsibilities eroded or destroyed by the Legislative Branch. And on the other, as per Madison alone, it was supposed to offer the Executive Branch some means of countering the influence of majority factions within the Legislative Branch bent on subverting the basic principles of justice. 

       

Returning to the subject of Jackson’s veto message of July 10^th, 1832, his assertion that the Chief Executive possessed a “legislative capacity” which should have been free to operate independently of the judgement handed down by the Supreme Court should now appear to be especially curious. As the records of the Philadelphia Convention debates make quite clear, the Framers did not intend for the executive veto to in any way constitute a legislative function. Jackson seemed intent on denying this, claiming as he did that it was the responsibility of the President to weigh in on the constitutionality of all laws submitted for his signature. But as Elbridge Gerry noted – and as none of his colleagues denied – “The primary object of the revisionary check of the President is not to protect the general interest, but to defend his own department.” As Jackson was not endeavoring to protect the rights of his office when he vetoed the re-charter of the Second Bank of the United States, he must therefore have been inventing a responsibility which the Founders never intended. In light of his established convictions, this was a strange position to take.

Jackson claimed to be a strict constructionist in the mold of Thomas Jefferson. He claimed to favor the rights of the states over those of the federal government. Both of these aspects of his character would seem to preclude articulating a much broader vision of executive responsibility than any of his predecessors had every attempted. But Jackson was also an ardent critic of the Supreme Court as it then existed. Like Jefferson, he was not amenable to the notion of unelected jurists striking down laws enacted by the elected representatives of the American people. Better, he seemed to believe, that such power lay in the hands of the President, being the only office in the whole of the American republic which, by definition, possessed the confidence of the whole of the American electorate. Perhaps this conviction did put a gloss on certain aspects of the Constitution which the Framers had never intended, and perhaps it did lend the Executive Branch a scope of action far beyond its established limits. But Jackson – again, like Jefferson – didn’t seem to be the kind of person who worried very much about the means he was forced to utilize if he believed that the ends were suitably justified. He knew what needed to be done, and damned if he was going to let anything stop him from doing it.

The broader philosophical implications of Jackson’s veto message were something of an academic point at the time of its publication, of course. As the President of the United States, pursuant to Article I, Section 7, he could veto legislation submitted by Congress based on whatever criteria he deemed relevant. The text in question makes this clear enough. “Before the Same shall take Effect,” it says, referring to bills approved by both houses of Congress, they “Shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives [.]” The Framers certainly had a specific meaning in mind when they devised this procedure – as the discussion above should have made clear – but this meaning is entirely absent from the Constitution itself. Jackson’s veto of the Bank bill, therefore, while philosophically at odds with the principles held by the Framers, was nonetheless entirely in keeping with the law of the land. The supporters of the re-charter effort naturally claimed otherwise. Daniel Webster maintained that Jackson’s assertion that the President could declare a law that had been passed by Congress and approved by the Supreme Court unconstitutional was wholly without basis in law or fact, while Henry Clay went so far as to assert that such arbitrary interference by the Executive Branch into the work of the national legislature represented an imminent threat to representative government in America. But while their outrage was loudly and emphatically expressed, Jackson’s opponents behaved as though they had no choice but to abide by the aforementioned constitutional procedure. Jackson’s veto having sent the re-charter bill back to Congress, the supporters of the Second Bank worked tirelessly to amass the requisite 2/3 majority in each house. By July 13^th, however, with nothing more than a simple majority in the Senate to show for their efforts, Jackson’s veto was formally sustained. The Second Bank of the United States was effectively dead in the water.

The general election that followed at the end of 1832 was unsurprisingly characterized by both the Democrats and the National Republicans as a referendum on Jackson’s treatment of the re-charter bill and the Second Bank. As far as Jackson and his supporters were concerned, the contest at hand was one between Jacksonian democracy and the rule of bankers and financiers. Biddle and the Second Bank were decried in Democratic newspapers as purveyors of corruption whose only aim was to enrich a handful of well-placed individuals while the American people at large worked themselves ragged just to survive. By stymieing the re-charter effort, these publications went on to declare, Andrew Jackson had thus struck a blow for the liberty of the common man and demonstrated once again his dedication to equality and his abiding disdain for special interests. Notwithstanding the advice he received to the contrary, Biddle provided ample fodder for these efforts by spending widely and generously in an attempt to secure Jackson’s defeat. No longer having to rely on mere rumors of malfeasance, Jackson was accordingly furnished with all the evidence he could ever have desired that the Second Bank really was being used by its directors to interfere in the democratic process.

The National Republican response to these accusations – substantially convincing as they were – was comparatively somewhat dry and academic. Clay and his fellow partisans made as much hay as they could of Jackson’s often imperious behavior, his evident disregard for the precedents of his office, and the implications which seem to accompany the sentiments expressed in his aforementioned veto message. The National Republican press depicted Jackson as a tyrant, and political cartoons portrayed his as a scepter-wielding monarch. In the end, however, these kinds of accusations could only go so far. At the time that Jackson was running for re-election in the waning months of 1832, all that he had done to cause his opponents to declare him a despot was veto a piece of federal legislation. The accompanying rationale was certainly worrying, particularly as it threatened to make the Executive Branch substantially immune from having its authority checked or curtailed, but the President’s actions were thus far entirely in keeping with the law of the land. Jackson could, at his own discretion, veto any bill that was placed before him. The Constitution gave him that power. And while it had become customary that the Chief Executive only deploy the veto when they believed a proposed law to be unconstitutional, the Constitution itself offered no instruction either way.

The Second Bank, by contrast – and specifically under the leadership of Nicolas Biddle – had interfered repeatedly in American domestic politics. Bank loans and donations had financed the political campaigns of a number of its supporters, members of Congress had been cajoled into publicly defending its record, and tremendous amounts of its operating capital had been spent on trying to defeat the candidate for President most hostile to its continued existence. Jackson’s claims as to the powers of his office may indeed have present the greater threat to American liberty if they were ever acted upon, but thus far the Second Bank had already shown itself to be a significant threat in practice. After first having bungled their response to the Panic of 1819, thus worsening and lengthening the economic downturn that inevitably followed, its directors had had the temerity to attempt to buy the political support which they felt would be needed in order to keep their prerogatives from being compromised or curtailed. Did the American people ever benefit from all this political wheeling and dealing? Well, yes and no. The Second Bank had played a significant role in stabilizing the American economy in the 1810s and in the latter half of the 1820s. This was no mean feat, to be sure, and one which its supporters were right to point out. That being said, the Second Bank had also often tended to function as an instrument of wealth perpetuation for the lucky few who owned shares or had access to its capital. That the democratic process suffered along the way did not speak well for the Bank’s continued existence, regardless of the associated advantages to which its supporters were quick to point.

The Democrats, in the end, won the war of words. Notwithstanding all of the money that Biddle had spent trying to convince the American people of the necessity of the Second Bank or the latent tyranny of Jackson – or indeed, perhaps precisely because of it – the President was re-elected to a second term in office. Nor was his victory a near thing, it bears adding. Of the 286 electoral votes up for grabs, the victorious candidate needed 144. The fringe Anti-Masonic and Nullifier candidates – each highly regional in their respective appeals – collectively secured eighteen electoral votes. Henry Clay, carrying six states, took 49 electoral votes. Jackson, with sixteen states and over 700,000 popular votes – 54.2% of all votes cast – came away with 219 electoral votes. As far as the Democrats were concerned, this overwhelmingly positive result constituted a ratification of Jackson’s veto of the Second Bank re-charter bill. And as far as Jackson was concerned, it constituted a popular mandate to dissolve the Second Bank well in advance of its pending expiration.

The reasoning for Jackson’s particular conclusion was in many ways as pragmatic as it was principled. Biddle had already demonstrated his willingness to use the resources of the Second Bank to influence popular opinion and swing popular elections. It was accordingly thought likely by Jackson and some of his more ardently anti-Bank supporters that Biddle would respond to the defeat of his electioneering efforts by essentially triggering a financial crisis for which Jackson would receive the blame. Understandably desirous of preventing such an outcome, Jackson accordingly included a request in his fourth State of the Union Address – delivered in December of 1832 – that Congress investigate whether the federal government’s deposits were truly safe in the hands of the Second Bank of the United States. The House of Representatives responded in the affirmative, conducted its investigation, and submitted a report for general approval in March of 1833. According to the Democratic-controlled committee tasked with carrying out the inquiry by the Democratic-controlled House – by a vote, it’s worth noting of 4-3 in favor – the deposits were in fact perfectly and completely secure. Many Democrats dissented from this finding, both from within the relevant committee and from within the Democratic caucus more generally, but not to the extent that it was in much danger of being rejected. Indeed, by a vote of 109-46, it was overwhelmingly approved. This result understandably left Jackson both incensed and newly determined. He was infuriated that his fellow Democrats should have failed to grasp the opportunity to destroy the object whose continued existence – or rather the threat thereof – had helped to secure their own elections. But he was also now quite resolute in his conviction that this problem in particular required his personal attention. Come hell or high water, he would destroy the Bank himself.