The Bill of Rights: Almost an Afterthought?
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Presidential Veto

Article I, Section 7 of the Constitution outlines the federal law-making process. Because paragraph two of this section specifies that each bill that passes both houses of Congress is then to be presented to the president, scholars sometimes refer to this clause as "the presentment clause." When presented with such a bill, the president may do nothing, sign it, or veto it. In the latter case, Congress may override this veto by a two-thirds vote of both houses, but in such cases a roll-call vote is taken and votes are recorded under individual names. The section also provides for bills to become law within 10 days if not returned by the president, unless Congress adjourns, in which case, the president's failure to sign results in what is called a "pocket veto."

Origins of the Veto

Under the original Virginia Plan, which Edmund Randolph introduced in the Convention on May 29, the Congress was to exercise power "to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union" (Farrand 1937, I, 21). Moreover, the president was to be joined with "a convenient number of the National Judiciary" to "compose a council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final" (I, 21). Congress would, in turn, have the power to override this veto by an unspecified majority. The presidential veto emerged from these provisions, which also stimulated discussion about the power of judicial review, that is, the power subsequently confirmed and established by Chief Justice John Marshall in Marbury v. Madison (1803) and subsequent cases, of the judiciary to declare laws to be unconstitutional.

Should the President Exercise the Veto Power Alone or with a Council of Revision?

The Convention began examining the Council of Revision on June 4. Perhaps because delegates widely agreed on the necessity for some such check on the legislative branch, they devoted little attention to whether such a veto was necessary. Instead, they concentrated on whether to vest the president and members of the judiciary with this power jointly or whether to vest such power in the president alone.

Elbridge Gerry of Massachusetts opposed combining the executive and the judiciary since he believed that judges would have the power to decide on the constitutionality of measures in the exercise of their judicial power. Rufus King, also of Massachusetts, seconded Gerry's motion to vest this power solely in the president. He observed that "the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation" (I, 98).

Discussion of an Absolute Executive Veto

Pennsylvania's James Wilson had another idea. He thought that the Council of Revision should have an "absolute" negative (I, 98), a provision that New York's Alexander Hamilton joined in favoring. By contrast, Elbridge Gerry thought that an absolute negative would give the executive too much power, and Benjamin Franklin, who later reinforced his views with examples from the history of Holland, observed that the royal governor of Pennsylvania had abused such power by extorting concessions from the legislature. Roger Sherman of New Jersey observed that "No one man could be found so far above all the rest in wisdom" (I, 99), and Virginia's James Madison argued that the conditional negative was adequate. Although Wilson defended his proposal for an absolute negative, South Carolina's Pierce Butler feared an increase in executive power, and Delaware's Gunning Bedford came close to supporting legislative sovereignty: "He thought it would be sufficient to mark out in the Constitution the boundaries to the Legislative Assembly, which would give all the requisite security to the rights of the other departments" (I, 100–101). Mason feared the power of an elective monarchy and concluded that it would be sufficient "to enable the Executive to suspend offensive laws, till they shall be coolly revised, and the objections to them overruled by a greater majority than was required in the first instance" (I, 102). Not surprisingly, the Convention unanimously rejected the executive's absolute negative.

The Proposal for Allowing the President to Suspend the Law

Butler then proposed allowing the executive to suspend legislation for a still-to-be-specified period, and Franklin seconded him. Gerry feared that such suspension "might do all the mischief dreaded from the negative of useful laws; without answering the salutary purpose of checking unjust or unwise ones," and the Convention unanimously rejected the idea while unanimously accepting the power of two-thirds majorities of Congress to override the veto (I, 104). The Convention then voted 8–2 (with Connecticut and Maryland in dissent) for Gerry's motion to vest the veto power exclusively in the executive.

Renewed Discussion of the Council of Revision

The Convention resumed discussion of the veto on June 6 when Wilson proposed reconsidering the idea of adding "a convenient number of the national Judiciary" to reinforce the president in his veto decision (I, 138). Madison seconded the motion by arguing that such an alliance would both control and support the president. Acknowledging some merit in the argument that judges who had given an initial approval to laws might be biased in expounding them, Madison thought that only a few such cases were likely to arise in a typical judge's lifetime and that much good would arise from "the perspicuity, the conciseness, and the systematic character wch. the Code of laws wd. receive from the Judiciary talents" (I, 139). He thought the objection based on separation of powers was less meritorious, since he saw no "improper mixture" in the alliance of the president and the judiciary. Gerry was not as convinced as Madison of the wisdom of judges. He rather feared that their "sophistry" would "seduce" the executive and give improper "sanction" to his actions (I, 139). Observing that the Convention had settled on a unitary executive, King thought that the creation of a Council of Revision was inconsistent with this decision. Charles Pinckney thought the president would be free to consult whomever he wanted and opposed allying the president with judges. John Dickinson thought that joining the president with judges would diminish presidential responsibility whereas Wilson thought that such responsibility would still remain unified in regard to executive functions. The Convention agreed with King, Pinckney, and Dickinson, defeating the motion to ally the president with the judiciary by a vote of 8-3.

On July 21, James Wilson renewed a proposal for allying the president with members of the judiciary in a Council of Revision, and Madison seconded him. Wilson argued that it was important for judges "to have an opportunity of remonstrating agst projected encroachments on the people as well as on themselves." Seeming to anticipate that judges would exercise the power of judicial review, Wilson anticipated that they would only exercise such power when laws were unconstitutional, whereas they should also be able to note when laws were "unjust," "unwise," "dangerous," and "destructive," without being unconstitutional (II, 72). Gorham opposed the idea of allying the president with judges. He saw no reason to think that judges would have any particular knowledge of "the mere policy of public measures" (II, 73). By contrast, Oliver Ellsworth thought that judges would "give more wisdom & firmness to the Executive" and possess a more "systematic and accurate knowledge of the laws," including "the law of Nations" (II, 74). Madison believed that such an alliance would both allow an additional opportunity for the judiciary to defend itself against "Legislative encroachments" and would inspire "additional confidence & firmness in exerting the revisionary power" (II, 74). He argued that such arrangement would not give undue power to either the president or the judiciary but would guard against the legislative tendency "to absorb all power into its vortex" (II, 74). Mason joined in supporting Madison.

Elbridge Gerry had plenty of objections. He thought it was unwisely "combining & mixing" departments that ought to be kept separate. It was attempting to make mere judges into "statesmen" and unwisely "making the Expositors of the Laws, the Legislators which ought never to be done" (II, 75). Caleb Strong, also of Massachusetts, agreed that the function of expounding the law should be kept separate from making it. Gouverneur Morris feared that the executive did not have enough weight successfully to exercise the veto, but he did not seem certain that an alliance with the judiciary would adequately supply this deficiency. Luther Martin thought an executive/judicial alliance was "a dangerous innovation." He observed that judges had no better "knowledge of mankind, and of Legislative affairs" than legislators, and thought that allowing judges to review laws both when they were written and when they were implemented was to give the judiciary "a double negative" (II, 76). Madison reiterated his arguments that such an arrangement did not violate the idea of separation of powers, arguments reiterated by Wilson and Morris, while Mason thought that the alliance would enable judges to stop not only laws that were unconstitutional but those that were unwise as well. Gerry said he would prefer to give the executive an absolute veto than to involve him in such an alliance. Gorham reiterated the objections, and Wilson attempted to defend against them. South Carolina's John Rutledge added that a president could consult with members of his cabinet, thus leaving judges in the position of not giving their opinions of a law until such laws came before them. Connecticut, Maryland, and Virginia cast votes for the proposal, but it was narrowly voted down by Massachusetts, Delaware, North Carolina and South Carolina, with Pennsylvania and Georgia being divided.

A New Twist on an Earlier Proposal

Madison was still not willing to concede, but, in renewing discussion on August 15, he altered his proposal so that laws would now be submitted separately to the president and the judiciary. Under his plan, congressional majorities of two-thirds would be required to override the veto by one institution and majorities of three-fourths would be required to override the veto of both. Wilson seconded this motion.

Charles Pinckney reiterated earlier arguments that this would unwisely involve judges in the process at two different stages. Maryland's John Mercer approved the motion, but he did so in the belief that judges had no role to play in invalidating laws on the basis of their unconstitutionality: "laws ought to be well and cautiously made, and then to be uncontroulable" (II, 298). Gerry observed that Madison's proposal differed little from the one that the Convention had already rejected. The delegates apparently agreed, turning the new proposal down by a more conclusive 8-3 majority, with only Delaware, Maryland, and Virginia favoring it.

What Is the Appropriate Majority for Overriding a Presidential Veto?

Despite this apparent conclusiveness, Gouverneur Morris regretted the decision and suggested, as an apparent alternative, that three-fourths of the legislature should be required to adopt laws over the president's veto. Dickinson now joined Mercer's earlier observation that judges should not have the power to invalidate laws on the basis that they believed them to be unconstitutional. Apparently emboldened, Morris reintroduced the idea of an absolute presidential veto as a means of protecting against legislative excesses. Sherman could see no reason to trust one man with such an awesome power and further "disapproved of Judges meddling in politics and parties." The Convention then began to wrangle over the idea of postponement, with Rutledge complaining about "the tediousness of the proceedings" and Ellsworth saying that he and his fellow delegates were growing "more & more skeptical as we proceed" (II, 301).

On a motion offered by North Carolina's Hugh Williamson and seconded by Wilson, the Convention then adopted the motion to raise the required congressional majorities needed to override an executive veto from two-thirds to three-fourths by a vote of 6-4-1. Madison succeeded in getting language adopted to make it clear that the veto would extend to a wide variety of legislative acts. The Convention also gave the president ten, rather than seven, days to return a bill to Congress.

Discussion resumed less than a week before the end of the Convention. Williamson, who had introduced the earlier motion raising the majority in Congress to override a veto, now proposed setting it back so as not to entrust the president with too much power. Sherman agreed. He believed that "it was more probable that a single man should mistake or betray this sense [of the people] than the Legislature" (II, 585). By contrast, Morris believed that the nation had more to fear from the "excess rather than the deficiency of laws," and wanted to leave the three-fourths requirement in place (II, 595). So did Alexander Hamilton. Gerry feared that the larger majority would allow too few men seeking presidential nominations to offices to join the president in blocking needed laws. Williamson feared that the three-fourths majorities might make it too difficult to repeal bad laws, and Mason agreed. Pinckney supported Gerry's argument. Madison attempted to "compare the danger from the weakness of 2/3 with the danger from the strength of 3/4" and judged that "the former was the greater" (II, 587). Nonetheless, the Convention voted 6-4-1 to restore the two-thirds provision.

Summary

The Convention thus kept the core idea in the Virginia Plan of a veto but chose to vest this power singly in the president rather than attempting to ally him with the judicial department. Partisans and opponents of the Council of Revision indicated that they were all concerned about the doctrine of separation of powers, although they clearly interpreted it differently, with those who were especially fearful of legislative powers being willing to ally the other two branches in opposition to them. Most, but by no means all, delegates who spoke on the subject appeared comfortable that in their judicial capacity, judges would examine the constitutionality of the laws that came before them, but those who supported this power thought there was a distinction between examining laws for their constitutionality and examining them for their wisdom. Delegates rejected an absolute executive veto, but they waffled on the majority that would be necessary to override a presidential veto. Agreeing for a time to a three-fourths majority, they ultimately settled on a two-thirds majority as being adequate to protect the presidency and the people against legislative encroachments without giving too much power to a single individual, perhaps allied with a few members of the legislative branch.

Robert Spitzer, who has studied the veto, has observed that the delegates to the Constitutional Convention chose not to use the term "veto," which he describes as a "semantic ploy" that "reflected a keen awareness of the monarchical roots of this power and the resentment that its use by the king and his colonial governors had engendered in America" (Spitzer 1988, 18). He observes that the placement of this power within Article I recognized that it was a legislative power and that the Constitution imposed no limits on its use. He further believes that the Framers intended for the veto to be used as much to influence the adoption of legislation as in blocking laws (18–19).
 

Further Reading
Greene, Evarts B. 1917. "American Opinion on the Imperial Review of Provincial Legislation, 1776–1787." American Historical Review 23 (October): 104– 107. Spitzer, Robert A. 1988. The Presidential Veto: Touchstone of the American Presidency. Albany: State University of New York Press. Tillman, Seth B. 2005. "A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Reasoned." Texas Law Review 83 (Spring).

 

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