Inaction By Design: Blame the Founders for Stalled LegislationRoundup
tags: Constitution, democracy, US Senate
Calvin Schermerhorn is professor of history in Arizona State University's School of Historical, Philosophical and Religious Studies and author of Unrequited Toil: A History of United States Slavery.
We’re getting used to the game of block-the-bill. Most recently, the refusal of Sens. Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.) to agree to abolish the filibuster to pass voting rights legislation, while also rejecting some elements of Democratic proposals on health care and infrastructure, points to the power of individual veto players in the Senate. But there are actually four institutional “veto players” in the Constitution — the House, Senate, presidency and the Supreme Court, all designed to put institutional brakes on the popular will. Inaction is the rule, not the exception — something the two-party system has exacerbated.
Democracy was a dirty word at the Constitutional Convention in 1787. Alexander Hamilton said that the people were “turbulent and changing” and thus concluded that “they seldom judge or determine right.” Even his rival Thomas Jefferson didn’t trust common men, especially debtors and urban workers, whom he wrote were “the instruments by which the liberties of a country are generally overturned.” And so, believing liberty to be synonymous with property ownership, the Constitution’s framers collectively decided that protecting property rights — specifically enslaved property — was more important than making the legislative process responsive to the people. To do this, the drafters of the Constitution ensured that each of the federal government’s three branches could halt legislation.
The word veto doesn’t appear in the Constitution, but ever since George Washington, presidents have had the power to veto acts of Congress, which the House and Senate can override with a two-thirds majority. Today, as has been the case since the 18th century, the House and Senate each exercises a veto over federal legislation since both chambers must pass bills before they go to the president’s desk. In 1803, in Marbury v. Madison, the Supreme Court also asserted its power to veto federal legislation, when it squirreled out of a showdown with Jefferson over judicial appointments by declaring a portion of the 1789 Judiciary Act unconstitutional. The court has maintained this privilege ever since.
Initially, vetoes were rare because politics revolved around regional interests and national figures rather than institutionalized political parties. The first six presidents used the veto just 10 times. When in 1803 Jefferson unconstitutionally bought Louisiana from Napoleon using a dodgy British loan, neither the Senate nor the Supreme Court stopped him. New Englanders protested, but the purchase was popular everywhere else in the country. Chief Justice John Marshall — a Virginia Federalist and an enslaver — had no problem with a real estate deal that expanded federal power and, probably, slavery.
The institutionalization of the two-party system changed the game and President Andrew Jackson showed the country how vetoing legislation, even popular legislation, could be a recipe for political gain. He co-founded the Democratic Party on opposition to a central bank, federal internal improvements and national tariffs. Jackson issued more vetoes than all previous presidents combined, unleashing state banks, state and private infrastructure projects and liberalizing trade.
And yet, during the 1850s, compromise became a mantle of statesmanship, even if compromisers kept millions of people enslaved and Congress refused to halt the interstate sales of Black Americans. But the Civil War and the emancipation of 4 million African Americans called for a reconstituting of the nation. And that meant pivoting around the veto players.
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