FReeper Book Club: The Debate over the Constitution, Federalist #73

In examining the attributes of the Presidency, Hamilton looks at the separation of powers of the Legislative and Executive branches and the use of the Executive’s veto power.

² The third ingredient towards constituting the vigor of the Executive authority is an adequate provision for its support.

³ It is evident that without proper attention to this article, the separation of the Executive from the Legislative department would be merely nominal and nugatory.

⁴ The Legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will as they might think proper to make him.

⁵ They might in most cases either reduce him by famine or tempt him by largesse to surrender at discretion his judgment to their inclinations.

⁶ These expressions, taken in all the latitude of the terms, would no doubt convey more than is intended.

⁷ There are men who could neither be distressed nor won into a sacrifice of their duty, but this stern virtue is the growth of few soils, and in the main it will be found that a power over a man’s support is a power over his will.

⁸ If it were necessary to confirm so plain a truth by facts, examples would not be wanting, even in this country, of the intimidation or seduction of the Executive by the terrors or allurements of the pecuniary arrangements of the Legislative body.

⁹ It is not easy, therefore, to commend too highly the judicious attention which has been paid to this subject in the proposed Constitution.

¹⁰ It is there provided that “The President of the United States shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them.”

¹¹ It is impossible to imagine any provision which would have been more eligible than this.

¹² The Legislature, on the appointment of a President, is once for all to declare what shall be the compensation for his services during the time for which he shall have been elected.

¹³ This done, they will have no power to alter it, either by increase or diminution, till a new period of service by a new election commences.

¹⁴ They can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice.

¹⁵ Neither the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act.

¹⁶ He can of course have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution.

¹⁷ The last of the requisites to energy which have been enumerated are competent powers.

¹⁸ Let us proceed to consider those which are proposed to be vested in the President of the United States.

¹⁹ The first thing that offers itself to our observation is the qualified negative of the President upon the acts or resolutions of the two Houses of the Legislature, or in other words his power of returning all bills with objections to have the effect of preventing their becoming laws unless they should afterwards be ratified by two-thirds of each of the component members of the Legislative body.

²⁰ The propensity of the Legislative department to intrude upon the rights, and to absorb the powers, of the other departments has been already suggested and repeated; 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 defense has been inferred and proved.

²¹ 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.

²² Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter.

²³ He might gradually be stripped of his authorities by successive resolutions or annihilated by a single vote.

²⁴ And in the one mode or the other, the Legislative and Executive powers might speedily come to be blended in the same hands.

²⁵ If even no propensity had ever discovered itself in the Legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self defense.

²⁷ It not only serves as a shield to the Executive, but it furnishes an additional security against the enaction of improper laws.

²⁸ It establishes a salutary check upon the Legislative body calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good which may happen to influence a majority of that body.

²⁹ The propriety of a negative has upon some occasions been combated by an observation that it was not to be presumed a single man would possess more virtue and wisdom than a number of men, and that unless this presumption should be entertained, it would be improper to give the Executive Magistrate any species of control over the Legislative body.

³⁰ But this observation, when examined, will appear rather specious than solid.

³¹ The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the Legislature will not be infallible, that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government, that a spirit of faction may sometimes pervert its deliberations, that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflection, would condemn.

³² The primary inducement to conferring the power in question upon the Executive is to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws through haste, inadvertence, or design.

³³ The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest.

³⁴ It is far less probable that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them.

³⁵ It may perhaps be said that the power of preventing bad laws includes that of preventing good ones and may be used to the one purpose as well as to the other.

³⁶ But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws which form the greatest blemish in the character and genius of our governments.

³⁷ They will consider every institution calculated to restrain the excess of lawmaking and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm because it is favorable to greater stability in the system of legislation.

³⁸ The injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones.

⁴⁰ The superior weight and influence of the legislative body in a free government, and the hazard to the executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution, and there would oftener be room for a charge of timidity than of rashness in the exercise of it.

⁴¹ A King of Great Britain, with all his train of sovereign attributes, and with all the influence he draws from a thousand sources, would at this day hesitate to put a negative upon the joint resolutions of the two Houses of Parliament.

⁴² He would not fail to exert the utmost resources of that influence to strangle a measure disagreeable to him in its progress to the throne to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body.

⁴³ Nor is it probable that he would ultimately venture to exert his prerogatives but in a case of manifest propriety or extreme necessity.

⁴⁴ All well informed men in that kingdom will accede to the justness of this remark.

⁴⁵ A very considerable period has elapsed since the negative of the Crown has been exercised.

⁴⁶ If a magistrate so powerful and so well fortified as a British monarch would have scruples about the exercise of the power under consideration, how much greater caution may be reasonably expected in a President of the United States, clothed for the short period of four years with the Executive authority of a government wholly and purely republican?

⁴⁷ It is evident that there would be greater danger of his not using his power when necessary than of his using it too often or too much.

⁴⁸ An argument, indeed, against its expediency has been drawn from this very source.

⁴⁹ It has been represented on this account as a power odious in appearance, useless in practice.

⁵⁰ But it will not follow that because it might be rarely exercised, it would never be exercised.

⁵¹ In the case for which it is chiefly designed, that of an immediate attack upon the constitutional rights of the Executive, or in a case in which the public good was evidently and palpably sacrificed, a man of tolerable firmness would avail himself of his constitutional means of defense, and would listen to the admonitions of duty and responsibility.

⁵² In the former supposition, his fortitude would be stimulated by his immediate interest in the power of his office; in the latter, by the probability of the sanction of his constituents who, though they would naturally incline to the Legislative body in a doubtful case, would hardly suffer their partiality to delude them in a very plain case.

⁵³ I speak now with an eye to a magistrate possessing only a common share of firmness.

⁵⁴ There are men who, under any circumstances, will have the courage to do their duty at every hazard.

⁵⁵ But the Convention have pursued a mean in this business which will both facilitate the exercise of the power vested in this respect in the Executive Magistrate and make its efficacy to depend on the sense of a considerable part of the Legislative body.

⁵⁶ Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described.

⁵⁷ This is a power which would be much more readily exercised than the other.

⁵⁸ A man who might be afraid to defeat a law by his single veto might not scruple to return it for reconsideration, subject to being finally rejected only in the event of more than one-third of each House concurring in the sufficiency of his objections.

⁵⁹ He would be encouraged by the reflection that if his opposition should prevail, it would embark in it a very respectable proportion of the Legislative body whose influence would be united with his in supporting the propriety of his conduct in the public opinion.

⁶⁰ A direct and categorical negative has something in the appearance of it more harsh and more apt to irritate than the mere suggestion of argumentative objections to be approved or disapproved by those to whom they are addressed.

⁶¹ In proportion as it would be less apt to offend, it would be more apt to be exercised, and for this very reason, it may in practice be found more effectual.

⁶² It is to be hoped that it will not often happen that improper views will govern so large a proportion as two-thirds of both branches of the Legislature at the same time, and this too in spite of the counterposing weight of the Executive.

⁶³ It is at any rate far less probable that this should be the case than that such views should taint the resolutions and conduct of a bare majority.

⁶⁴ A power of this nature in the Executive will often have a silent and unperceived, though forcible, operation.

⁶⁵ When men engaged in unjustifiable pursuits are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition from doing what they would with eagerness rush into, if no such external impediments were to be feared.

⁶⁶ This qualified negative, as has been elsewhere remarked, is in this state vested in a council consisting of the Governor with the Chancellor and judges of the Supreme Court, or any two of them.

⁶⁷ It has been freely employed upon a variety of occasions and frequently with success.

⁶⁸ And its utility has become so apparent that persons who, in compiling the Constitution, were violent [opponents] of it, have from experience become its declared admirers.^*

⁶⁹ I have in another place remarked that the Convention, in the formation of this part of their plan, had departed from the model of the constitution of this state in favor of that of Massachusetts.

⁷¹ One is that the judges, who are to be the interpreters of the law, might receive an improper bias from having given a previous opinion in their revisionary capacities; the other is that by being often associated with the Executive, they might be induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the Executive and Judiciary departments.

⁷² It is impossible to keep the judges too distinct from every other avocation than that of expounding the laws.

⁷³ It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the Executive.

[*] Mr. Abraham Yates, a warm opponent of the plan of the Convention is of this number.

The overall theme of this paper is one of balance, and the reader is once again struck by how carefully the matter of the interrelationships between the departments of government under the proposed Constitution was delicately and deliberately laid between the two poles of complete separation of powers and complete checks and balances.

In one aspect, at least, the government visualized by Hamilton resembled more the fresh historical model of the English Civil Wars than the actual government that was to take shape over the ensuing decades. Clearly he felt the danger of power shift in republican governments was more from the legislative branch marginalizing or subverting the executive than vice versa. The modern reader, whose freshest historical model is one of 20th Century despotism, might view the matter differently.

It is a fragmentary piece. Within it Hamilton finishes off his consideration of the support of Executive authority (2) and begins his treatment of the Executive powers (18) according to the analytical design he stated some six essays ago. Common to these two topics is the threat to the Executive from the “depredations” of the Legislative, the first case of which is that the Legislative branch might attempt to influence the President by the simple expedient of controlling his pay during his tenure in office.

⁵ They might in most cases either reduce him by famine or tempt him by largesse to surrender at discretion his judgment to their inclinations.

The solution was a formal requirement for its members to declare the President’s remuneration at the outset of the term and a prohibition on its alteration (10). One small measure of the effectiveness of that solution is how strange the very idea of a Congress starving a President into submission appears to the modern reader.

But that is not the only threat Hamilton foresaw, and he now embarks upon a discussion of the powers granted to the Presidency to meet it. The modern reader has come to regard the Presidential veto – Hamilton’s term is a “negative” (21) – as a brake on runaway legislation that a Congress, made overenthusiastic by its closer proximity to the people, might decide to enact in an ill-considered fashion. Indeed, Hamilton has already suggested as much himself. But in this paper it appears only as the secondary motivation for the veto power, the primary one being to allow the President to safeguard his very office from the encroachments of the Legislature.

Such a power may be used to prevent good laws as well as bad (34). Hamilton does not deny this, but to him that danger of a veto used on good legislation is more than offset by the advantages of preventing the bad. His formulation might serve as a foundational statement of political conservatism.

³⁷ They [the readers considering the matter] will consider every institution calculated to restrain the excess of lawmaking and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm because it is favorable to greater stability in the system of legislation.

Edmund Burke would shortly pen an entire treatise on the matter with respect to the French Revolution that was beginning to take shape. Indeed, the limited veto power enjoyed by the French Chief Executive, King Louis XVI, under the French Constitution of 1789 – he could only suspend legislation, not refuse it – was to be terminated in violence at the hands of his own legislative Assembly.

The King of England, however, enjoyed the power of absolute veto, a power so complete that its usage was tantamount to a declaration of war with the House of Commons and hence was seldom employed (41). How then was that power to be structured for the American Presidency such that it might be sufficiently strong to save the President from the impending fate of Louis, and sufficiently limited as to constitute a practical course of action instead of an act of despotism?

⁵⁶ Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described.

⁵⁷ This is a power which would be much more readily exercised than the other.

This “qualified” veto was one that could be overridden should two-thirds of the Houses of Congress vote to do so. It was, to be sure, a considerable requirement, but it meant that no President would really have the final word on legislation. In terms of modern systems design, it is a feedback loop within government, and it is a loop with an exit condition.

It was a system already employed by certain state governments. In New York, the veto power was held by a council (66), but the Convention preferred to invest it in a single Executive after the practice of the state government of Massachusetts (69). Hamilton mentions in passing the system of placing veto power in the hands of the Judiciary and dismisses it as an impermissible strain on the separation of powers between the two departments (71).

Even in this aside the reader notes the emphasis on balance, and the care taken to ensure that the strength of the government and Hamilton’s other criterion, the security of the people from its over-expression, were maintained by a carefully structured tension between its three constituent branches. The qualified veto is one means of attaining this balance, as is what might seem at first glance the petty detail of the arrangement of Executive remuneration. The balance was no accident, and here Hamilton gives the reader a clue of just how carefully the whole thing was thought through. Two centuries of experience will serve to justify Hamilton’s theory on the issue, and to a great extent, his pride at the solution.

What would happen if the President were given veto power over Supreme Court decisions? How many Justices should it require to override that veto? Or should the matter then be placed before Congress? Is this even a workable system?

The rule of law would then become a political toy. Because the makeup of the Court enables us to predict the likely outcome of cases, presidential candidates would promise to veto upcoming decisions thought to be contrary to their party's political agenda. I don't think justices should (or would) change their interpretation of the law in order to override a veto. If they did, they'd be sacrificing any claim to objectivity or respect for the law. A SCOTUS decision cannot be subjected to political pressure. It would destroy our system of justice. It is not a workable system, IMHO.

Imagine the consequences of a SCOTUS decison that ruled ObamaCare to be unconstitutional. Obama vetoes it. The matter is sent to a Congress where both houses are controlled by Dems. Congress overrules the SCOTUS decision. ObamaCare becomes unconstitutional law by political fiat. No thanks!

The SCOTUS must be the final interpreter of the law. They must have the ability to send unconstitutional legislation back to the drawing board or to the grave.

At 24, Hamilton points out the danger of the powers of the Legislative and the Executive branches ending up in the same hands.

We have seen very similar language previously and I quote Mr. Madison from Federalist 47:

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.

What do they mean by the term "same hands"?

I contend that they are talking about people with the same interests such as for example, librarians or plumbers, electricians or perhaps even lawyers. Oh! My gracious! It appears that if my reasoning is correct one such group HAS accumulated such power and that group is lawyers!

I think an example would be the tiny oligarchy that rammed National Socialist Healthcare into law.

Obamamao, Pelosi, Reid and their flying monkey assistants by the names of Steny Hoyer, Dick Durbin fit the description.

No hearings. Released in the dead of night. Promises and threats to recalcitrant members. It is possible that no single person knew the entirety of the bill.

Hundreds of rats voted to enact that which they never read and didn't care to read. They voted to rubber stamp the will of their leadership in the proudest tradition of totalitarian regimes.

Oligarchy, tyranny, whatever it was, it barely followed the merest forms of our Constitution. It must die.

This sentence stopped my reading in its tracks:

If even no propensity had ever discovered itself in the Legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self defense.

From his birth on that tiny island of Nevis and his studies that took him from poverty to the pinnacle of political life, Hamilton had learned well the lessons of people and their abuse of power.

OK, time to read on....

•At 24, Hamilton points out the danger of the powers of the Legislative and the Executive branches ending up in the same hands..."

OK, a question for you. Somewhere in the anti-federalists writings I read where one was very critical of all powers being under the same roof: Legislative, Executive, Judicial and Corrective. I think it was written as an egg of tyranny that would soon hatch, or something like that.

Do you know who wrote of that?

It was not something from your works; I read it from a book somewhere in my collection. I remember the concept well because I found it reasonable.

I’ll eventually run into it again.

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