Resolving Political Questions into Judicial Questions: Tocqueville's Thesis Revisited

By Graber, Mark A. | Constitutional Commentary, Summer 2004 | Go to article overview

Resolving Political Questions into Judicial Questions: Tocqueville's Thesis Revisited


Graber, Mark A., Constitutional Commentary


Americans throughout the Jacksonian era bitterly disputed the proper use of the President's veto power. Whigs insisted that Democratic Presidents were abusing an authority to reject legislation originally intended to be confined largely to unconstitutional measures." The powers of Congress are paralyzed," Henry Clay complained, "by frequent and an extraordinary exercise of the executive veto, not anticipated by the founders of the constitution, and not practiced by any of the predecessors" of Andrew Jackson. (1) Democrats insisted Jacksonian Presidents were acting well within their Article II powers when preventing from becoming law bills incorporating a new national bank and funding internal improvements. The veto power, future president James Buchanan informed Congress, "is a mere power to arrest hasty and inconsiderate changes, until the voice of the people, who are alike the masters of Senators, Representatives and President, shall be heard." (2) President Jackson was censured and President John Tyler nearly impeached in part over controversies arising out of their exercise of the veto. (3)

The federal judiciary was the only branch of the national government whose members refrained from expressing official opinions on the proper constitutional use of the veto power. Many Supreme Court justices had strong personal opinions on that issue. Chief Justice Taney while Attorney General helped

draft Jackson's message vetoing the bill rechartering the national bank. Levi Woodbury when in Congress vigorously defended Tyler's aggressive use of the veto power. (4) Nevertheless, the numerous political and constitutional questions raised by the way Jacksonian presidents wielded the veto power were never resolved into judicial questions. No federal justice ever expressed an official judicial opinion on the constitutionality of pocket vetoes or on whether the veto power could be constitutionally exercised only when rejecting unconstitutional legislation. Constitutional questions associated with the veto in Jacksonian America were resolved entirely by nonjudicial processes.

These debates over presidential power in antebellum America belie Tocqueville's famous assertion, "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." (5) The more accurate assertion when Tocqueville wrote is, "scarcely any national political question" arose that was "resolved into a judicial question." With the exception of slavery, the prominent political questions that dominated national politics during the 1830s, 1840s, and 1850s did not become federal judicial questions. Federal courts during the three decades before the Civil War resolved only a very small percentage of the national political controversies that excited Jacksonian America.

The remarkably truncated agenda of the late Marshall and Taney Courts is only partly explained by the Jacksonian failure to resolve some political questions into legal or constitutional questions. Henry Clay and other Whigs consistently stated their objections to Jacksonian uses of the veto power in constitutional terms. American System proposals were widely understood as raising fundamental constitutional questions. Whigs claimed that the Constitution empowered the national government to incorporate a national bank, fund internal improvements, impose protective tariffs, and distribute surplus revenue to the states. Jacksonian Democrats insisted that such measures were unconstitutional. Nevertheless, majorities on the Taney Court refrained from ruling on the constitutionality of any major American System proposal. During the three decades before the Civil War, the official position of the Supreme Court on the veto power, on the national bank, and on the vast majority of political questions not directly concerned with slavery was, "No comment."

This article explores the relationships between national political questions and national judicial questions during the second party system and, to a lesser extent, the present. …

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