Federalist Paper No. 73
The Provision for the Support of the Executive, and the Veto Power
From the New York Packet.
Friday, March 21, 1788.
HAMILTON
To the People of the State of New York.
THE third ingredient towards constituting the vigor of the executive authority,
is an adequate provision for its support. 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. 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. They might, in most cases, either reduce him by
famine, or tempt him by largesses, to surrender at discretion his judgment to their
inclinations. These expressions, taken in all the latitude of the terms, would no doubt
convey more than is intended. 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. 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.
It is not easy, therefore, to commend too highly the judicious attention which
has been paid to this subject in the proposed Constitution. 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.'' It is impossible to imagine any
provision which would have been more eligible than this. 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. 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. They can neither weaken his fortitude by operating on his
necessities, nor corrupt his integrity by appealing to his avarice. 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. He can, of
course, have no pecuniary inducement to renounce or desert the independence intended for
him by the Constitution.
The last of the requisites to energy, which have been enumerated, are competent
powers. Let us proceed to consider those which are proposed to be vested in the President
of the United States.
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.
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. 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. Without the one or the other, the former would be absolutely
unable to defend himself against the depredations of the latter. He might gradually be
stripped of his authorities by successive resolutions, or annihilated by a single vote.
And in the one mode or the other, the legislative and executive powers might speedily come
to be blended in the same hands. 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
selfdefense.
But the power in question has a further use. It not only serves as a shield to
the Executive, but it furnishes an additional security against the enaction of improper
laws. 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.
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.
But this observation, when examined, will appear rather specious than solid.
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 reflexion, would condemn. 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. 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. 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.
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. 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. They will consider every institution calculated
to restrain the excess of law-making, 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. 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.
Nor is this all. 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. 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. 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. Nor is it probable, that he would ultimately venture to exert his
prerogatives, but in a case of manifest propriety, or extreme necessity. All well-informed
men in that kingdom will accede to the justness of this remark. A very considerable period
has elapsed since the negative of the crown has been exercised.
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.
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. An argument, indeed, against
its expediency, has been drawn from this very source. It has been represented, on this
account, as a power odious in appearance, useless in practice. But it will not follow,
that because it might be rarely exercised, it would never be exercised. 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. 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. I speak now with an
eye to a magistrate possessing only a common share of firmness. There are men who, under
any circumstances, will have the courage to do their duty at every hazard.
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. Instead of an absolute negative, it is proposed to give the Executive the qualified
negative already described. This is a power which would be much more readily exercised
than the other. 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. 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. 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. 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. 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. 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. A power
of this nature in the Executive, will often have a silent and unperceived, though
forcible, operation. 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.
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. It has been freely employed upon a variety of
occasions, and frequently with success. And its utility has become so apparent, that
persons who, in compiling the Constitution, were violent opposers of it, have from
experience become its declared admirers..
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. Two strong reasons may be imagined for this preference.
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. It is
impossible to keep the judges too distinct from every other avocation than that of
expounding the laws. It is peculiarly dangerous to place them in a situation to be either
corrupted or influenced by the Executive.
PUBLIUS.
(Continue to Page 74)
1 Mr. Abraham Yates, a warm opponent of the plan of the convention is of this
number.
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