1787 Federalist 73 · Founding Made Plain

11787 Federalist No. 73

2The Provision For The Support of the Executive,

3and the Veto Power

4From the New York Packet.

5Friday, March 21, 1788.

6HAMILTON

7To the People of the State of New York:

8THE third ingredient towards constituting the vigor

9 of the executive authority,

10 is an adequate provision for its support.

11It is evident that, without proper attention

12 to this article,

13 the separation of the executive

14 from the legislative department

15 would be merely nominal and nugatory.

16The legislature,

17 with a discretionary power over the salary

18 and emoluments

19 of the Chief Magistrate,

20 could render him as obsequious to their will

21 as they might think proper to make him.

22They might, in most cases,

23 either reduce him by famine,

24 or tempt him by largesses,

25 to surrender at discretion his judgment

26 to their inclinations.

27These expressions, taken in all the latitude of the terms,

28 would no doubt convey more than is intended.

29There are men who could neither be distressed nor won

30 into a sacrifice of their duty;

31 but this stern virtue is the growth of few soils;

32 and in the main it will be found

33 that a power over a man's support

34 is a power over his will.

35If it were necessary to confirm so plain a truth by facts,

36 examples would not be wanting, even in this country,

37 of the intimidation or seduction of the Executive

38 by the terrors or allurements

39 of the pecuniary arrangements

40 of the legislative body.

41It is not easy, therefore, to commend too highly

42 the judicious attention which has been paid

43 to this subject in the proposed Constitution.

44It is there provided that

45 "The President of the United States shall,

46 at stated times, receive for his services

47 a compensation WHICH SHALL NEITHER BE INCREASED

48 NOR DIMINISHED DURING THE PERIOD

49 FOR WHICH HE SHALL HAVE BEEN ELECTED;

50 and he SHALL NOT RECEIVE WITHIN THAT PERIOD

51 ANY OTHER EMOLUMENT from the United States,

52 or any of them."

53It is impossible to imagine any provision

54 which would have been more eligible than this.

55The legislature, on the appointment of a President,

56 is once for all to declare

57 what shall be the compensation for his services

58 during the time for which he shall

59 have been elected.

60This done, they will have no power to alter it,

61 either by increase or diminution,

62 till a new period of service

63 by a new election commences.

64They can neither weaken his fortitude

65 by operating on his necessities,

66 nor corrupt his integrity

67 by appealing to his avarice.

68Neither the Union, nor any of its members,

69 will be at liberty to give,

70 nor will he be at liberty to receive,

71 any other emolument

72 than that which may have been determined

73 by the first act.

74He can, of course, have no pecuniary inducement

75 to renounce or desert the independence

76 intended for him by the Constitution.

77The last of the requisites to energy,

78 which have been enumerated, are competent powers.

79Let us proceed to consider those

80 which are proposed to be vested

81 in the President of the United States.

82The first thing that offers itself to our observation,

83 is the qualified negative of the President

84 upon the acts or resolutions

85 of the two houses of the legislature;

86 or, in other words,

87 his power of returning all bills with objections,

88 to have the effect of preventing

89 their becoming laws,

90 unless they should afterwards be ratified

91 by two thirds of each of the component members

92 of the legislative body.

93The propensity of the legislative department

94 to intrude upon the rights,

95 and to absorb the powers, of the other departments,

96 has been already suggested and repeated;

97 the insufficiency of a mere parchment delineation

98 of the boundaries of each,

99 has also been remarked upon;

100 and the necessity of furnishing each

101 with constitutional arms for its own defense,

102 has been inferred and proved.

103From these clear and indubitable principles

104 results the propriety of a negative,

105 either absolute or qualified, in the Executive,

106 upon the acts of the legislative branches.

107Without the one or the other,

108 the former would be absolutely unable

109 to defend himself against the depredations

110 of the latter.

111He might gradually be stripped of his authorities

112 by successive resolutions,

113 or annihilated by a single vote.

114And in the one mode or the other,

115 the legislative and executive powers

116 might speedily come to be blended

117 in the same hands.

118If even no propensity had ever discovered itself

119 in the legislative body

120 to invade the rights of the Executive,

121 the rules of just reasoning and theoretic propriety

122 would of themselves teach us,

123 that the one ought not to be left

124 to the mercy of the other,

125 but ought to possess a constitutional

126 and effectual power of selfdefense.

127But the power in question has a further use.

128It not only serves as a shield to the Executive,

129 but it furnishes an additional security

130 against the enaction of improper laws.

131It establishes a salutary check

132 upon the legislative body,

133 calculated to guard the community

134 against the effects of faction, precipitancy,

135 or of any impulse unfriendly to the public good,

136 which may happen to influence

137 a majority of that body.

138The propriety of a negative has, upon some occasions,

139 been combated by an observation,

140 that it was not to be presumed

141 a single man would possess more virtue and wisdom

142 than a number of men;

143 and that unless this presumption should be entertained,

144 it would be improper to give

145 the executive magistrate

146 any species of control over the legislative body.

147But this observation, when examined,

148 will appear rather specious than solid.

149The propriety of the thing does not turn

150 upon the supposition of superior wisdom or virtue

151 in the Executive,

152 but upon the supposition

153 that the legislature will not be infallible;

154 that the love of power may sometimes betray it

155 into a disposition to encroach

156 upon the rights of other members of the government;

157 that a spirit of faction

158 may sometimes pervert its deliberations;

159 that impressions of the moment

160 may sometimes hurry it into measures

161 which itself, on maturer reflexion, would condemn.

162The primary inducement to conferring the power

163 in question upon the Executive is,

164 to enable him to defend himself;

165 the secondary one is to increase the chances

166 in favor of the community

167 against the passing of bad laws,

168 through haste, inadvertence, or design.

169The oftener the measure is brought under examination,

170 the greater the diversity in the situations

171 of those who are to examine it,

172 the less must be the danger of those errors

173 which flow from want of due deliberation,

174 or of those missteps which proceed

175 from the contagion of some common

176 passion or interest.

177It is far less probable,

178 that culpable views of any kind

179 should infect all the parts of the government

180 at the same moment and in relation

181 to the same object,

182 than that they should by turns

183 govern and mislead every one of them.

184It may perhaps be said

185 that the power of preventing bad laws

186 includes that of preventing good ones;

187 and may be used to the one purpose

188 as well as to the other.

189But this objection will have little weight

190 with those who can properly estimate

191 the mischiefs of that inconstancy and mutability

192 in the laws,

193 which form the greatest blemish

194 in the character and genius of our governments.

195They will consider every institution

196 calculated to restrain the excess of law-making,

197 and to keep things in the same state

198 in which they happen to be at any given period,

199 as much more likely to do good than harm;

200 because it is favorable to greater stability

201 in the system of legislation.

202The injury which may possibly be done

203 by defeating a few good laws,

204 will be amply compensated

205 by the advantage of preventing

206 a number of bad ones.

207Nor is this all.

208The superior weight and influence

209 of the legislative body in a free government,

210 and the hazard to the Executive

211 in a trial of strength with that body,

212 afford a satisfactory security

213 that the negative would generally be employed

214 with great caution;

215 and there would oftener be room

216 for a charge of timidity than of rashness

217 in the exercise of it.

218A king of Great Britain,

219 with all his train of sovereign attributes,

220 and with all the influence he draws

221 from a thousand sources,

222 would, at this day, hesitate to put a negative

223 upon the joint resolutions

224 of the two houses of Parliament.

225He would not fail to exert the utmost resources

226 of that influence

227 to strangle a measure disagreeable to him,

228 in its progress to the throne,

229 to avoid being reduced to the dilemma

230 of permitting it to take effect,

231 or of risking the displeasure of the nation

232 by an opposition to the sense

233 of the legislative body.

234Nor is it probable,

235 that he would ultimately venture

236 to exert his prerogatives,

237 but in a case of manifest propriety,

238 or extreme necessity.

239All well-informed men in that kingdom

240 will accede to the justness of this remark.

241A very considerable period has elapsed

242 since the negative of the crown has been exercised.

243If a magistrate so powerful and so well fortified

244 as a British monarch,

245 would have scruples about the exercise

246 of the power under consideration,

247 how much greater caution may be reasonably expected

248 in a President of the United States,

249 clothed for the short period of four years

250 with the executive authority

251 of a government wholly and purely republican?

252It is evident that there would be greater danger

253 of his not using his power when necessary,

254 than of his using it too often, or too much.

255An argument, indeed, against its expediency,

256 has been drawn from this very source.

257It has been represented, on this account,

258 as a power odious in appearance, useless in practice.

259But it will not follow,

260 that because it might be rarely exercised,

261 it would never be exercised.

262In the case for which it is chiefly designed,

263 that of an immediate attack

264 upon the constitutional rights of the Executive,

265 or in a case in which the public good

266 was evidently and palpably sacrificed,

267 a man of tolerable firmness

268 would avail himself of his constitutional means

269 of defense,

270 and would listen to the admonitions

271 of duty and responsibility.

272In the former supposition,

273 his fortitude would be stimulated

274 by his immediate interest

275 in the power of his office;

276 in the latter,

277 by the probability of the sanction

278 of his constituents,

279 who, though they would naturally incline

280 to the legislative body in a doubtful case,

281 would hardly suffer their partiality

282 to delude them in a very plain case.

283I speak now with an eye

284 to a magistrate possessing only

285 a common share of firmness.

286There are men who, under any circumstances,

287 will have the courage to do their duty at every hazard.

288But the convention have pursued a mean in this business,

289 which will both facilitate the exercise of the power

290 vested in this respect in the executive magistrate,

291 and make its efficacy to depend

292 on the sense of a considerable part

293 of the legislative body.

294Instead of an absolute negative,

295 it is proposed to give the Executive

296 the qualified negative already described.

297This is a power which would be much more readily exercised

298 than the other.

299A man who might be afraid to defeat a law

300 by his single VETO,

301 might not scruple to return it for reconsideration;

302 subject to being finally rejected

303 only in the event of more than one third

304 of each house concurring

305 in the sufficiency of his objections.

306He would be encouraged by the reflection,

307 that if his opposition should prevail,

308 it would embark in it a very respectable proportion

309 of the legislative body,

310 whose influence would be united with his

311 in supporting the propriety of his conduct

312 in the public opinion.

313A direct and categorical negative

314 has something in the appearance of it more harsh,

315 and more apt to irritate,

316 than the mere suggestion

317 of argumentative objections

318 to be approved or disapproved

319 by those to whom they are addressed.

320In proportion as it would be less apt to offend,

321 it would be more apt to be exercised;

322 and for this very reason,

323 it may in practice be found more effectual.

324It is to be hoped that it will not often happen

325 that improper views will govern

326 so large a proportion as two thirds

327 of both branches of the legislature

328 at the same time;

329 and this, too, in spite of the counterposing weight

330 of the Executive.

331It is at any rate far less probable

332 that this should be the case,

333 than that such views should taint

334 the resolutions and conduct of a bare majority.

335A power of this nature in the Executive,

336 will often have a silent and unperceived,

337 though forcible, operation.

338When men, engaged in unjustifiable pursuits,

339 are aware that obstructions may come

340 from a quarter which they cannot control,

341 they will often be restrained

342 by the bare apprehension of opposition,

343 from doing what they would

344 with eagerness rush into,

345 if no such external impediments were to be feared.

346This qualified negative, as has been elsewhere remarked,

347 is in this State vested in a council,

348 consisting of the governor,

349 with the chancellor and judges

350 of the Supreme Court,

351 or any two of them.

352It has been freely employed upon a variety of occasions,

353 and frequently with success.

354And its utility has become so apparent,

355 that persons who, in compiling the Constitution,

356 were violent opposers of it,

357 have from experience become

358 its declared admirers. 1

359I have in another place remarked,

360 that the convention, in the formation of this part

361 of their plan,

362 had departed from the model

363 of the constitution of this State,

364 in favor of that of Massachusetts.

365Two strong reasons may be imagined for this preference.

366One is that the judges,

367 who are to be the interpreters of the law,

368 might receive an improper bias,

369 from having given a previous opinion

370 in their revisionary capacities;

371 the other is that by being often associated

372 with the Executive,

373 they might be induced to embark too far

374 in the political views of that magistrate,

375 and thus a dangerous combination

376 might by degrees be cemented

377 between the executive and judiciary departments.

378It is impossible to keep the judges too distinct

379 from every other avocation

380 than that of expounding the laws.

381It is peculiarly dangerous to place them

382 in a situation to be either corrupted or influenced

383 by the Executive.

384PUBLIUS.

3851 Mr. Abraham Yates,

386 a warm opponent of the plan of the convention

387 is of this number.