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Vetoes in the Early Republic: A Defense of Norms
Trevor Latimer
Dartmouth College
Trevor Latimer is a postdoctoral fellow in the Political Economy Project and Department of
Government at Dartmouth College. His research focuses on localism, American political
thought, normative questions concerning multi-level political orders, and antebellum American
politics.
AUTHOR’S NOTE: The author would like to thank Paul Frymer, Keith Dougherty, Jamie
Carson, David Hughes, Jennie Ikuta, three anonymous referees, and the participants at a
workshop at the University of Georgia in 2015 for invaluable comments and suggestions.
The first six presidents (1789-1829) vetoed bills far less frequently than their successors.
Previous literature affords two competing explanations for this phenomenon. The constitutional
norms approach contends that the early presidents used the veto only to reject unconstitutional
legislation. The veto bargaining approach argues that the early presidents vetoed fewer bills
because the electoral conditions under which vetoes typically occur had yet to emerge. This
article accepts some of the insights of the veto bargaining approach, but defends a corrected
version of the norms account. This account says the early presidents vetoed fewer bills because
they were constrained by a norm according to which “adversarial” vetoes were considered
illegitimate. The emergence of the modern veto required discursive legitimation of vetoes for
adversarial purposes.
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“Even though the ruler may not, at the time, be troublesome, it is a sad fact that he can be so, if
he takes the fancy.”
—Cicero, Philippics 8.4.12 (Richard 1994, 119)
The president’s veto power is thought to be of central importance to the presidential office
(e.g. Spitzer 1988; Wilson 1913). Yet from 1789 to 1829 the first six presidents of the United
States only vetoed a total of ten bills: Washington two, John Adams zero, Jefferson zero,
Madison seven, Monroe one, and John Quincy Adams zero. In his two terms, Andrew Jackson
“vetoed with abandon,” rejecting two more bills than his six predecessors combined (Remini
1981, 280). In the equivalent period of forty years (1829-1869), presidents Jackson through
Johnson vetoed a total of seventy-eight bills, nearly eight times as many as in the previous forty
years (see Figure 1). If the veto power is so critical to the presidency, why did the early
presidents use the power so infrequently? What distinguishes patterns of veto usage in the earlier
from the later period?
[Figure 1 About Here]
The literature affords two competing explanations of the paucity of presidential vetoes in the
early republic. The first, recently discredited “constitutional norms” account, says that the early
presidents vetoed fewer bills that their successors because they adhered to a norm in which
vetoes only could be used to reject unconstitutional legislation (Jackson 1967; Skowronek 1993).
The second, the “veto bargaining” account, says that vetoes were uncommon in the earlier period
because the electoral conditions under which vetoes occur had yet to emerge (McCarty 2009).
The purpose of this article is to contest and amend Nolan McCarty’s “veto bargaining”
account of presidential vetoes in the early republic by resurrecting a corrected version of the
norms explanation—one that escapes the problems attributable to the “constitutional” norms
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version. The account offered in this article is a “corrected” version of the constitutional norms
account because it insists on the role of norms while denying that the relevant norms were
narrowly constitutional in nature. As McCarty (2009, 372-74, table 1) has shown, the
constitutional norms account is simply false: the early presidents vetoed bills on both
constitutional and non-constitutional grounds (also see Mason 1890). Nevertheless, the early
presidents believed they should exercise the veto power with extreme caution. They adhered to a
norm according to which the chief executive, following a “logic of appropriateness” (March and
Olsen 2006), was expected to “rise above party.” The early presidents strove to avoid the
appearance of participating in direct partisan conflict, even while participating in such conflicts
obliquely. This intense desire to behave as a disinterested “Patriot King” (Bolingbroke [1738]
1997) affected how and when they used the veto power: when they used it, their vetoes were
justified in lofty, methodical terms; in other cases, they chose not to use the veto power at all.
Although the “corrected norms” and “veto bargaining” accounts may appear antithetical—
one institutional and formal, the other ideational and historical—this article suggests that they are
actually compatible and complementary. The corrected norms account combines the insights of
the “constitutional norms” and “veto bargaining” accounts by arguing that the veto bargaining
account captures veto frequency in the post-1829 period but that norms, accurately specified,
explain the lower veto frequency in the pre-1829 period, taking the pattern of veto behavior in
the post-1829 period as a baseline. McCarty’s veto bargaining account accurately captures the
pattern of veto behavior in the later period but predicts too many vetoes in the early republic.
Restrictive norms account for this discontinuity. In other words, once the norms explanation is
rescued from McCarty’s critique, it provides a more convincing account of the dearth of vetoes
in the early republic than that provided by the veto bargaining explanation alone.
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As Harsanyi (1969, 524) has suggested, norms based explanation is consistent with the
rational choice approach adopted by McCarty; individuals are motivated by the desire for “social
acceptance” as well as “economic gain” (also see Ostrom 1998). Yet unlike material interests,
what constitutes social acceptance is socially, culturally, and ideationally constructed (Hay
2011). Since “norms reinforce patterns of behavior…by representing those patterns as
particularly desirable or obligatory” (Pettit 1990, 725), norms help to explain why presidents in
one period acted differently than presidents in another. Merely because the norms restricting
presidential veto behavior in the early republic were not strictly “constitutional” does not mean
that no such norms existed. The first six presidents (Washington to J.Q. Adams) were in fact
constrained by a norm—derived in part from eighteenth century Anglo-American political
thought—proscribing use of the veto in certain ways and certain circumstances (Hofstadter 1969;
Ketcham 1984). This norm required the executive to show deference toward the legislature
(Skowronek 1993) and to behave as a “patriot president” —to rise above party and sacrifice for
the common good (Liddle 1979; Scherr 1995).
Briefly, the argument of this article is that although McCarty’s “institutional preconditions”
argument is analytically plausible, it is weakly supported empirically and pays insufficient
attention to the role of norms and ideas. The discontinuity between veto frequency in the early
republic and in later periods is explicable by reference to changing norms and ideational
developments. As numerous historians and political scientists have observed, the political
culture—including norms guiding executive behavior—underwent a radical transformation with
the ascension of Andrew Jackson to the presidential chair (Kruman 1992; Leonard 2002;
McCormick 1966, 1982; Skowronek 1993; Wilson 1988). Put differently, although the
“constitutional norms” account is flawed, and although the “veto bargaining” explanation is
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analytically plausible, a more rigorous norms-based account explains why the early presidents
were hesitant to use the veto, and why many later presidents, beginning with Jackson, were not.
The “veto bargaining” account gets close to the right answer by positing the absence of
necessary electoral conditions; the corrected norms account contests McCarty’s historical
evidence while adding a historically grounded and analytically rigorous explanation of the norms
constraining the early presidents’ use of the veto. In practice, the restrictive norm of the early
republic permitted constitutional and policy vetoes but proscribed adversarial vetoes.
Adversarial vetoes are those in which the president opposes a recognizable subset of the
legislature, rather than the legislature as such. There is of course an adversarial element in all
vetoes—in vetoing a bill, the president rejects a bill favored by majorities in both houses;
nevertheless, opposition to the legislature as a coordinate branch of government is distinct from
opposition to a faction within the legislature on programmatic grounds (for a complete veto
typology, see Table 1).
The article is organized as follows. The first section lays out the basics of veto bargaining
theory, as well as its application to presidential behavior in the early republic (Cameron and
McCarty 2004; Gilmour 2011; Groseclose and McCarty 2001; McCarty 1997, 2000). The second
section gives several reasons to doubt the veto bargaining explanation for low veto frequency in
the early republic. The third section develops the norms account of veto behavior in the early
republic by (a) reviewing leading accounts of the role of ideas in politics (Béland and Cox 2011;
Nelson 2014; Schmidt 2008; Skinner 2002; Tulis 1987), (b) placing the veto in its historical
context, and (c) distinguishing between “adversarial,” “constitutional,” and “policy” veto types.
The fourth and fifth sections present historical evidence for the norm of restrained veto usage.
The sixth section addresses continuity and change: why did the relevant norms constrain
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presidents during the early republic and why did those constraints loosen thereafter? The seventh
section explains why the corrected norms explanation escapes McCarty’s critique of
constitutional norms. That is, once a broader understanding of restrictive norms is adopted—one
that is more faithful to the relevant historical context—it becomes clear why the early presidents,
from Washington to John Quincy Adams, used the veto sparingly: to do otherwise would be
considered illegitimate in the political culture.
The Veto Bargaining Account
A basic veto bargaining model assumes three actors: the president, the median member of a
unicameral legislature, and the “override pivot.” The override pivot is the legislator whose vote
would ensure the successful override of the president’s veto. The simplest model also assumes
complete information: each player knows the policy preferences of the other players. The game
is played as follows: the legislature proposes a bill (or not), and the president chooses to accept
or reject the bill. If the bill is accepted, the game is over. If the bill is vetoed, the override pivot
chooses whether to override or sustain the veto.
This simple model is intriguing because it predicts no vetoes (Cameron and McCarty 2004,
414). Since the median legislator knows the preferences of both the president and the override
pivot, she has no reason to propose bills that would be vetoed and then sustained by the override
pivot. Moreover, the president has no reason to veto bills when she knows her veto will be
overridden (cf. Carrubba et al. 2012). Thus, the median legislator only proposes bills that will
eventually become law, and the president accepts all bills proposed.
Given that presidents have in fact vetoed bills, the simplest model is unsatisfactory. One way
in which to complicate the model in order to generate vetoes in equilibrium is to relax the perfect
information assumption (Cameron 2000, 99-106; Matthews 1989). For example, if the legislature
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is unsure which bills the president will accept and which bills she will veto, it must choose
between proposing a less attractive bill with a greater chance of receiving the president’s
approval and proposing a more attractive bill with a greater risk of a veto. Merely adding an
element of uncertainty is enough to generate equilibrium vetoes.
Nevertheless, elite uncertainty is not the only path to equilibrium vetoes. Gloseclose and
McCarty’s (2001) “blame game” model adds a fourth player—the voter—with uncertainty about
the president’s position in the issue space (also see Gilmour 1995). The voter is unsure whether
the president is an extremist or a moderate (cf. Canes-Wrone, Herron, and Shotts 2001). The
president is an extremist if her preferences are far from that of the voter; she is a moderate if her
preferences are close to the voter’s. The model also posits that the legislature’s utility might be
affected by the president’s standing with the voters. This means that if the legislature cares about
the president’s popularity, it may have reason to propose a bill it expects the president to veto. If
the legislature knows that the president is an extremist, but the voter (mistakenly) thinks she is a
moderate, the legislature can signal this fact to the voter by engineering a blame game veto. The
president’s veto of a popular bill provides a signal of her extremism. Critically, if opposing
political parties control the legislative and executive branches, the party controlling the
legislature may gain political points by manufacturing a veto that is damaging to the president
and her party (i.e. position-taking).1
The final step in this reconstruction of McCarty’s argument is to show how the blame-game
model helps to explain veto frequency in the early republic. The most important prediction
derived from the model as described thus far is that vetoes are more likely when opposing
political parties control the presidency and Congress. Furthermore, as McCarty argues, “an
important feature of this model is that the president and Congress care about the president’s
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approval among voters” (377, emphasis added). Nevertheless, there is no incentive to play the
blame-game unless “the audience” (i.e. the voter) is positioned and prepared to punish the
president or the president’s party at the polls. McCarty’s explanation for veto frequency in the
early republic centers on the presence or absence of the relevant audience. When the audience is
absent, Congress has no incentive to signal and therefore we observe fewer vetoes; when the
audience is present, as in the post-1829 period according to McCarty, Congress has an incentive
to signal, and we observe the predicted number of vetoes.
In the empirical model McCarty develops to test the theory, the dependent variable is the
total number of public vetoes per congressional term from 1829 to 2004. The primary variables
of interest are partisan division, presidential popularity (because the incentive to play the blame
game increases as presidential popularity increases), and position in the electoral cycle (because
blame game vetoes are more likely when the president is running for re-election). Controls are
included for legislative output (because veto frequency should be related to the number of bills
proposed), military and economic conditions, a linear time trend, and indicators for Democratic
presidents (generally) and Cleveland and Roosevelt (specifically, as outliers).
McCarty then compares predicted veto frequency for the pre-1829 period (generated from
the model estimated with the post-1829 sample) to actual veto usage in the pre-1829 period. Not
only were there fewer vetoes than predicted by the model, actual veto use (excepting Madison)
falls below the lower-bound of the model’s 95% confidence interval. This indicates that veto
frequency in the early republic is statistically distinguishable from veto frequency after 1829.
The model predicts 34 more vetoes than actually occurred in the period 1789-1829. As McCarty
notes, “it is not simply the case that there were uniformly fewer vetoes during the first 40 years.
The vetoes that did occur are not correlated with the same factors as they would have been under
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modern usage” (2009, 381). In other words, the blame-game model of veto behavior accurately
predicts veto usage in the post-1829 period, but fails to predict veto usage in the earlier period.
The veto bargaining model, on its own, does not explain veto frequency in the early republic.2
One possible conclusion from the preceding is that patterns of veto usage in the pre- and
post-1829 periods simply diverge. This is not McCarty’s argument. He instead claims that
discrepancies between the two periods can be explained by reference to electoral conditions.
During the early republic, “the conditions for blame game vetoes—partisan competition before a
broad electorate—had yet to fully emerge. Once those conditions were in place, the positiontaking incentives of presidents and legislators led to greater usage of the veto” (383). Since
according to the blame game model, a presidential veto is essentially a signal to an audience,
fewer vetoes occurred in the pre-1829 period because there was no audience to receive the
signal. With no audience, the legislature’s incentive to signal, by engineering a blame game veto,
was absent. Without an incentive to signal, the legislature does not send bills to the president for
her to veto. In short, the absence of incentives for the legislature to play the blame game explains
the relative absence of vetoes in the early republic.
Problems with the Veto Bargaining Account
The blame game explanation of veto usage in the early republic is analytically plausible but
unsatisfactory for the following reasons. First, McCarty claims that the electoral “conditions for
blame game vetoes” were absent in the early republic, generating fewer vetoes. Yet he is not
entirely clear or consistent about which electoral conditions were absent during the early
republic, and whether such conditions were in fact absent in the relevant way. Second, the
“absence of electoral conditions” account of veto behavior in the early republic leaves behind a
weak explanation of the vetoes that did occur. Third, the veto bargaining account neglects the
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ideational preconditions for regular use of the veto power. These points are expanded in order.
First, McCarty is not clear or consistent about which electoral conditions were absent and
how the absence of those conditions explains pre-1829 veto frequency. Inferring directly from
the model, these conditions should be partisan competition (because the incentive to signal
depends on potential benefits from political posturing) and a broad electorate (because the
legislature needs a politically receptive, and relatively uninformed, audience). However,
McCarty actually says that we observe fewer vetoes in the early republic because “election
outcomes were dominated by state and local leaders and the well-to-do” (374). It is unclear
whether “elite control over election outcomes” is supposed to be equivalent to the absence of
partisan competition and a broad electorate. Perhaps elite domination of elections implies the
absence of a broad electorate, or that since elites were well-informed about the president’s views,
blame game vetoes would reveal no new information to the relevant audience (elites)? However,
as Donald Ratcliffe (2013, 234) notes, although “historians have commonly assumed that in the
early republic the voters exercised their electoral privilege under the close supervision of their
social superiors,” in fact, “elite control did not generally extend to the electoral process.” Voting
by secret ballot, rather than viva voce, was the norm in this period (Ratcliffe 2013, 235).
In addition to these ambiguities, McCarty’s cited evidence for the absence of the relevant
electoral conditions is problematic for both analytical and empirical reasons. Analytically, the
evidence should show the absence of an audience receptive to blame game vetoes. Without a
receptive audience, congressional leaders lack an incentive to provoke a politically damaging
presidential veto. The evidence cited, however, relates to the “scope of popular participation in
presidential politics” (2009, 374). Unless the sole objective of a blame game veto is to damage
the president, rather than the president and her allies, a broad congressional or state electorate
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could perform the same function. It is conceivable that a blame game veto could be used to
damage the president’s partisans in state and congressional elections, in which everyone agrees
the electorate was active. Thus, to be fully convincing, the blame game explanation of the
paucity of vetoes in the early republic would need to demonstrate the absence of a broad
electorate in state, congressional, and presidential contests.
Empirically, the evidence cited by McCarty is contested in the literature. McCarty
specifically notes that in the election of 1800 over 60% of presidential electors were chosen by
state legislatures. Yet the election of 1800 was actually the peak of the dominance of presidential
elections by state legislatures. Georgia, Massachusetts, New Hampshire, and Pennsylvania,
which had chosen electors by popular vote in 1796, reverted by to selection by the state
legislature for the 1800 election. Excepting 1800, the highest proportion of presidential electors
chosen by state legislatures in a given contest was 48% (in 1792). In the period as a whole
(1789-1828), state legislatures chose only 36% of presidential electors (see Figure 2). Ratcliffe’s
review of the historical literature concludes that “it is misleading to assume that, before [1827-8],
traditional aristocratic attitudes had previously placed the selection of the Electoral College in
the hands of the state legislatures, or that its members exercised their judgment independent of
the ticket upon which they were elected” (249). Thus, elections for state legislatures had
implications for presidential politics. Had the national legislature desired to manufacture blame
game vetoes, there was already an active audience ready to receive the signal.
[Figure 2 About Here]
Setting to one side the “broad electorate” condition, McCarty also claims, vis-à-vis the
“partisan competition” condition, that “the collapse of the Federalists meant the absence of
partisan competition” and that in 1828 “bipolar, if not quite partisan, competition for the
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presidential office emerged” (374). The implication is that there was no meaningful party
competition in the period corresponding to that of low veto frequency. Absent party competition,
according to the veto bargaining model, a blame game veto would not send a clear signal to the
voters, nor would there be a good incentive to signal.
But this characterization of partisan competition in the early republic is debatable. Partisan
competition, at least among elites, emerged as early as 1792. The elections of both 1796 and
1800, pitting the Federalist John Adams against the Republican Thomas Jefferson, were fought
bitterly. Nor did the Federalists completely disappear upon Jefferson’s inauguration in 1801.
Philip J. Lampi (2013), primary researcher for the New Nation Votes project, has recently
recounted the story of Federalist Party resurgence in the period 1808-1816. Federalists were
competitive in state and national elections, especially after the Republicans’ unpopular Embargo
Act of 1807 up through the Hartford Convention of 1814. In 1812, James Madison narrowly
defeated the Federalist DeWitt Clinton, winning 128 electoral votes to Clinton’s 89.3 Federalists
continued to have some success in states outside of New England until 1816. The extent of
partisan competition in this period is indicated by the degree to which parties in control of state
legislatures manipulated electoral districts and changed electoral rules (including the method by
which presidential electors were selected) to their own advantage. Lampi concludes his study of
the electoral fortunes of the Federalist Party after 1800 by stressing how “quickly the United
States developed its unique and vibrant mass-based political system” (280). Two-party
competition was only really absent from 1820-1828. Nor was the nature of partisan competition
constant throughout the period (Aldrich 2011).
Second, assuming that a broad electorate and partisan competition are jointly necessary
conditions for blame game vetoes, and if the blame game model is accepted rather than
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alternative veto bargaining models, the ten vetoes that did occur in the early republic remain
poorly understood. If the blame game model provides the best account of when and why
presidents veto bills proposed by Congress, and if the legislatures of the early republic did not
have an incentive to pass bills for the president to veto (as McCarty argues), why did
Washington, Madison, and Monroe veto bills? More specifically, why did the legislatures of the
early republic propose bills opposed by the president? Perhaps, if a commitment to the veto
bargaining framework is to be maintained, the blame game model should be replaced by an
incomplete information model for the earlier period. If so, the early vetoes might be interpreted
as mistakes on the part of the legislature. In any event, the blame game account needs to be
supplemented in order to explain presence of vetoes in the early republic.
Third, as will be explained in greater detail in the next section, the veto bargaining
explanation, while isolating electoral preconditions, neglects the role of ideas and norms as
preconditions for presidential vetoes. For vetoes to occur, not only must it be the case that there
exists a broad electorate and partisan competition, it also must be the case that the legislature and
(especially) the president are willing to play the blame-game. The blame game logic simply does
not apply if the president consistently signs bills the legislature passes in order to elicit her veto.
If the president’s reputation is such that the legislature cannot expect her to veto bills according
to the blame game logic, the legislature has no incentive to pass bills solely for signaling
purposes. Gloseclose and McCarty (2001) have discussed the case in which the president accepts
a bill she opposes to the status quo in order to appear conciliatory. This article suggests that the
strength of the desire to appear (or actually be) conciliatory or deferential is shaped by the norms
of legitimacy in the context in which bargaining occurs. A context (e.g., the early republic) in
which greater weight is placed on deference to the legislature, or in which certain reasons for
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rejecting bills are considered illegitimate (e.g., adversarial reasons), is one in which bills will be
accepted that would be rejected in another context with different norms (the post-1829 period).
For the president to accept a bill she opposes on policy grounds (when that bill was passed with
the intention of exposing the president’s extremism) just is to refuse to play the blame game.
The Corrected Norms Account
If the electoral conditions under which vetoes are expected to occur, according to the veto
bargaining account, were in fact present in the early republic, as suggested in the previous
section, what then accounts for the period’s low veto frequency? This is a case in which the
rational choice approach fails to adequately explain the relevant phenomenon. Some rational
choice scholars have turned to ideas when “explanation in terms of ‘objective’ or ‘material’
interests is insufficient” (Schmidt 2010, 6). The turn to norms in this case is therefore defensible
even within the rational choice framework, although the following account does not limit itself to
that approach.
For the norms account to succeed, it needs to be able to explain why the early presidents—
who embraced the “above party” ideal from which the norm of restrained veto usage was
derived—accepted bills that later presidents who rejected the norm of restrained veto usage
would have rejected. The claim is that we observe fewer vetoes in the period 1789-1828 than in
later periods because the early presidents’ desire to act as “patriot presidents” led them to
withhold potential vetoes, or in some cases, to fail to regard the veto as a legitimate option. This
is an ideational argument.
An ideal—that of the disinterested and impartial executive—shaped the early presidents’
desire to “rise above parties.” This desire generated a constraint on justification and narrowed the
range of actions considered by the early presidents. These constraints on justification affected
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presidential behavior: when a plausible conciliatory justification for a veto was unavailable,
presidents signed bills they might have opposed on adversarial grounds. And in other,
unobservable, cases the early presidents simply did not contemplate using the veto power when
later presidents might have.
Moreover, since the norm of restrained veto usage was common knowledge among the era’s
elites, congressional leaders would have known that attempted blame game vetoes would fail.
One cannot expose the president’s “extreme” policy preferences if she does not take the bait. We
observe more vetoes in the post-1828 period because entrepreneurial political actors of a later
generation eventually developed a new way to legitimate use of the veto, as exemplified by
Andrew Jackson (see below, p. 36). Congressional leaders could then use the logic of blame
game vetoes to attempt to weaken the president and her partisans.
There is an important discontinuity in the justificatory requirements associated with the
president’s decision to accept or reject a bill. Although presidential “signing statements” have
become commonplace, there is no constitutional requirement to justify the acceptance of a bill
passed by Congress. In contrast, the Constitution stipulates that when a president rejects a bill,
“he shall return it, with his Objections to that House in which it shall have originated, who shall
enter the Objections at large on their Journal, and proceed to reconsider it” (Art. I, Sec. 7). Thus,
with the exception of so-called pocket vetoes, presidents must justify their actions when
rejecting, but not when accepting, a bill.
Justification is a discursive and rhetorical activity, involving principles, arguments, ideas,
and norms. The burgeoning literature on ideas in social science research, as well as older work in
the history of ideas, provides useful guidance. According to Béland and Cox (2011, 3), “the ideas
people share in their communications with those around them inform not only their belief in
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what they want but what they deem to be appropriate, legitimate, and proper.” Of particular
relevance for the subsequent discussion of the early presidents’ conception of the presidential
veto power, “ideas are embedded in the design of institutions” (Béland and Cox 2011, 8). It
should be remembered that the American presidency, as the first republican executive, was a
world-historical institutional development (Mansfield 1989, xxii). The design of that institution
reflected, but also built upon, a monarchical precedent. The new institution of the presidency was
more than the powers and functions allocated by a constitutional text; ideas about what to do and
how to behave filled in some of the gaps left by formal rules. And the ideas inherited from the
past, as well as the precedents set by the early officeholders, shaped the institution into the
future. Robert Cox (2004) has described, in a different context, the path dependency of an idea;
ideas can be “sticky,” in the sense that they persist in time and influence beyond the context in
which they emerged. Similarly, according to Sheri Berman (2010, 106), “political actors often
remain stubbornly attached to traditional behavioral or decision-making patterns even when
confronted with powerful incentives to change course.” As argued above, the incentives for
blame game vetoes—a broad electorate and partisan competition—existed for much of the early
republic. The persistence of ideas—of dominant scripts for behavior—helps to explain why the
early presidents, who came to political maturity in the revolutionary era, refused to act as the
logic blame game model suggests.
According to the most influential account of the role of ideas in intellectual history,
developed most famously by Quentin Skinner (2002), ideas and culture shape action by
removing certain courses of action from the menu of available options (also see Geertz 1964;
Nelson 2014). It is sometimes said that culture and norms render certain actions inconceivable
for a particular agent in a particular context. It is more accurate to say that ideas and culture
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render certain courses of action more or less salient, and more importantly, more or less
legitimate. Norms and culture also influence what kinds of considerations come to mind when an
agent is deciding what to do. Inconceivability is the wrong term because human beings are
creative creatures possessing agency. So it is not that culture eliminates potential courses of
action in a deterministic way. Ideational innovation and norm development are familiar
phenomena, yet these processes are discursive, dialogical, and intersubjective.
There are several familiar examples of norms constraining presidential behavior. Jeffrey
Tulis (1987) has described norms constraining the president’s rhetorical appeals. He argues that
“before presidents could appear on television, or radio, it had to be legitimate for them to do so”
(15). Consider, also, the two-term tradition of presidential tenure, set by George Washington
(Bailey 1972). This norm was so influential that when Franklin Roosevelt violated it, the nation
amended the Constitution to prevent further transgressions. Finally, consider the norm against
explicit campaigning for the presidency in the nineteenth century. Stephen A. Douglas was
widely ridiculed for his activities on the campaign trail in 1860. Rather than admitting his
transgressions, Douglas claimed that his explicit aim was to save the Union from both “Black
Republicans” and southern fire-eaters, not to get himself elected. It is important to notice that the
existence of these norms is most often observed in the breach—for instance, Theodore
Roosevelt, FDR, and Douglas. Actions consistent with powerful norms typically escape explicit
commentary. Sometimes, but certainly not always, the violation of norms of appropriate
behavior contributes to the development of the norm being violated. The arguments used to
justify norms-transgressing behavior typically draw on ideas in the culture to which the norm
belongs. The discourse through which norms change over time is often self-reflexive.
The corrected norms account begins by synthesizing the received wisdom on executive
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power from the history of political thought. One might be skeptical that abstract political theory
had any direct influence on political action, and indeed the influence described is not direct.
Since the early American presidents were also founders (with the possible exception of the
second Adams), they were aware that they were building an institution from scratch. For
instance, in 1790, Washington wrote: “Few, who are not philosophical Spectators, can realise the
difficult and delicate part which a man in my situation had to act. […] I walk on untrodden
ground. There is scarcely any action, whose motives may not be subject to a double
interpretation. There is scarcely any part of my conduct w[hi]ch may not hereafter be drawn into
precedent” (Crackel 2008, Jan. 9, 1790). The early presidents looked to the history of political
thought for models and they conceived of their role and actions with these models in mind. They
acted in the context of ordinary politics, but they also aimed to solidify their reputations in
history. They cared not only about enacting their policy preferences but also about presenting
themselves to future generations.
We also know that the presidents of the early republic read extensively in history and
philosophy (Colbourn 1998; McDonald 1978-1979). They were particularly attuned to the most
important opposition literature in Anglo-American political thought. The first six presidents read
many of the same books, respected the same authors, and shared many of the same formative
experiences (Padover 1958). The following discussion considers the five most commonly cited
thinkers of the period 1760-1805—Montesquieu, Blackstone, Locke, Hume, and Plutarch— as
well as the great opposition leader and theorist of parties, Viscount Bolingbroke (Lutz 1984).
Each of these theorists provides an account of executive power that envisions some form of
self-restraint. These thinkers rarely discuss the veto power explicitly. One must therefore keep in
mind that the power to refuse bills was a prerogative of office, in the sense that it was a
19
discretionary power, to be used according to the executive’s best judgment. In the strictest sense,
the veto is not a prerogative because its function is legislative, not executive. Nevertheless, it is
like the ordinary prerogatives in that it belongs to the executive alone. The decision to accept or
reject bills is subject to no superordinate power, and as such, it is liable to abuse. Hence, what
these respected thinkers have to say about the executive’s use of prerogative power is critically
important. Note, however, that the constraints on executive power outlined by these figures are
not always framed in the adversarial terminology adopted in this article. Yet the reasons given
for executive restraint can be interpreted in those terms if the classical republican and opposition
conception of party and faction is kept in mind.
In the republican and opposition traditions, party or faction was defined by its opposite, the
common good. Actions inconsistent with the public good, or favoring private interest, were
considered “partisan” or “corrupt.” Disinterestedness, impartiality, and independent judgment
were the markers of public virtue. A king or president could fail to “rise above party” by
becoming subservient to his ministers, courtiers, or a legislative faction.
For both Montesquieu and Blackstone, the negative (veto) was a legislative power with a
limited structural purpose within a system of separated powers. It was a second-order
(legislative) prerogative, in the sense that its purpose was to protect the crown’s first-order
(executive) prerogatives against encroachments from parliament (Blackstone 1765-1769, 1:50-1,
150, 239; Montesquieu [1748] 1989, 157, 62).
For Locke, the executive’s use of the negative voice was limited, like all governmental
action, by the law of nature and the public good. Although Locke argues that there is no power
on earth to which an aggrieved populace may appeal if executives violate its trust, he says that
the appeal to heaven (i.e. God) is “the thing of all others, they have most need to avoid, as of all
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others the most perilous” ([1690] 1988, 380; also see Ward 2005). Locke is of course raising the
specter of rebellion and disorder. This fear of anarchy and decay would have been particularly
salient for the president of a new republic, especially one who had witnessed Shay’s Rebellion
and the Whiskey Rebellion. Locke’s lesson for presidents is to consider, when contemplating use
of the veto power, the prospect of unleashing revolutionary passions.
David Hume (1994) came closest among the five authors to articulating explicitly the norm
of restrained veto usage. He argued that “when a popular bill has been debated in parliament”
and is “presented for the royal assent, few princes will venture to reject the unanimous desire of
the people” (222-223). He also gives insight into the potential consequences of issuing a veto in
adversarial or partisan terms: “as much as legislators and founders of states ought to be honored
and respected among men, as much ought the founders of sects and factions to be detested and
hated” (33-34).
For a generation of Americans for whom the classics “provided appropriate models and
antimodels of personal behavior and governmental form” (Richard 1994, 207), two examples
from Plutarch’s Lives (1979) would have been particularly compelling. These are examples of
vetoes through which private interest was perceived to have subverted the public good.
Tiberius Gracchus eventually deposed his fellow tribune Marcus Octavius for his veto of a
popular land reform (1001).4 After the sack of the city of Veii, Camillus enraged the people by
“opposing the law by which the city was to be divided” in order to take “advantage of two great
and magnificent cities” (159). Since Roman tribunes were representatives of the common people,
these two incidents may have had special meaning for the founding generation.
Finally, in The Idea of a Patriot King, perhaps the most explicit guidebook for the new
American chief executive, Bolingbroke argued:
21
To espouse no party, but to govern like the common father of his people, is so
essential to the character of a Patriot King, that he who does otherwise forfeits the
title. […] For faction is to party what the superlative is to the positive: party is a
political evil, and faction is the worst of all parties. […] Instead of abetting the
divisions of his people, he will endeavour to unite them, and to be himself the
centre of their union: instead of putting himself at the head of one party in order to
govern his people, he will put himself at the head of his people in order to govern,
or more properly to subdue, all parties. (257-258)
The warning to the republican version of the Patriot King, the Patriot President, is abundantly
clear: rise above parties, or risk becoming a tyrant (see also Ketcham 1984). The implication for
the president’s use of the veto power would have been clear as well. If a president wished to be
known among her contemporaries and to posterity as a Patriot President, she would have to avoid
“abetting the divisions of his people” with the veto power. A patriot president should evaluate
bills according to their intrinsic merits, not according to the opinions of her cabinet or factions in
the legislature. Issuing the first divisive veto had the added danger of making its author a
detested founder of a faction.
Neustadt (1990, 154) has suggested that “in the American political system the President sits
in a unique seat and works within a unique frame of reference.” Similarly, according to
Mansfield (1989, 272), the presidential “office, situated and fortified as it is, calls for a certain
virtuous behavior from the office-holder—a virtuous behavior which is, as it were, accidental to
the virtue or lack of it in his person.” These remarks help us to understand why the president
could be expected to “rise above parties” despite being the head of a government rife with
partisanship. Presidents typically have sympathy with one side or another in partisan conflicts.
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But what it meant for the early presidents to act disinterestedly for the common good was to set
these sympathies aside when exercising the prerogatives of office. This of course did not mean
that the early presidents believed they had to abandon their policy preferences entirely. They
instead thought that they had to reason their way to a decision while ignoring or suppressing their
private and partisan interests. As a further consequence of the “above parties” ideal, presidents
had to concern themselves with the appearance of divisiveness, regardless of the actual role of
party spirit in their deliberations.
❉
The argument now turns to the stated commitments of early American leaders, some of
whom became presidents. The first six presidents’ adherence to the Bolingbrokean “above party”
ideal has been well established (Ketcham 1984). However, since the literature on the early
American “above party” ideal rarely discusses the veto power, it remains to be seen how early
American leaders applied that ideal to their views on how the veto should be used.
In considering the cultural and ideational context of the early republic, it is sometimes helpful to
remember that the first six presidents served in a period that was closer, historically, to the
execution of King Charles I in 1649 and the Glorious Revolution of 1688—in which a royal
family was deposed—than to the election of Barack Obama. Each of the first six presidents
would have known that the “refusal of Charles I to approve several important measures passed
by Parliament is considered to be one of the major causes of the Revolution of 1642” (Moe 1987;
Watson 1987, 403). They would have remembered the unpopular vetoes of colonial legislation
by the king and his royal governors. They would have known first-hand that the first two
grievances listed in the Declaration of Independence referred to the crown’s use of the veto
power. George III was first at revered, and then denounced, in Bolingbrokean terms.
Closely following Hume, Alexander Hamilton (2003, 360), in Federalist No. 73, asked, “If a
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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?” Although Hamilton was
idiosyncratic in suggesting that “there would be greater danger of his not using his [veto] power
when necessary, than of his using it too often, or too much” he did not depart from tradition on
the purpose of the veto: “The primary inducement to conferring the power…is to enable him to
defend himself; the secondary one is to encrease the chances in favor of the community, against
the passing of bad laws, through haste, inadvertence, or design” (359).
While George Washington considered the bill to establish the first national bank in 1791,
Jefferson wrote the following in a memo to the president:
unless the President’s mind on a view of every thing which is urged for & against
this bill, is tolerably clear that it is unauthorised by the constitution. if the pro and
the con hang so even as to balance his judgment, a just respect for the wisdom of
the legislature would naturally decide the balance in favour of their opinion. it is
chiefly for cases where they are clearly misled by error, ambition, or interest, that
the constitution has placed a check in the negative. (Crackel 2008, Feb. 15, 1791)
These men therefore understood the veto power as a check on haste, inadvertence, or design;
error, ambition, or interest. But ambition and interest were to be checked disinterestedly, by
rising above parties and not by directing one.
When the veto power was used for the first time in 1792, Washington worried that it would
be interpreted in an interested, and therefore partisan, manner. Jefferson reported that
Washington “observed that the vote for and against the bill was perfectly geographical, a
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Northern agt. a Southern vote, and he feared he should be thought to be taking side with a
Southern party” (Oberg and Looney 2008–2016, "Memoranda of Consultations with the
President"). This passage shows that “party” could mean “distinct interest,” and that the danger
was in appearing to take sides.
In sum, the early presidents had a clear conception of when and how the veto power should
be used. First, they all believed that the veto power could be used to reject unconstitutional
legislation. Second, they also believed that the veto could be used to correct errors in poorly
drafted laws. The aim of these vetoes was not to thwart the will of the legislature but rather to
refine it using the unique perspective of the presidential office. Yet the first six presidents denied
the legitimacy of a third kind of veto, the adversarial veto. A veto of this kind was considered
illegitimate because it required the president to abandon his position above and removed from
partisan conflict. To issue an adversarial veto would be to take sides with a faction or interest—
to engage in corruption. A typology of vetoes is presented in the table below.
[Table 1 About Here]
Now of course a president might oppose a bill passed by the legislature on adversarial
grounds while justifying his veto on constitutional or policy grounds. The early presidents were
not rubes. But norms of justification do not admit infinite rhetorical latitude. Human beings face
intense pressure to act in ways that “reflect their advertised commitments” (Nelson 2014, 25).
The corrected norms account needn’t show that the early presidents never acted with adversarial
or partisan motives. It only needs to show that concerns with legitimacy and reputation made
vetoes less likely. Evidence of several “stillborn vetoes”—vetoes considered but not issued—is
presented in a subsequent section. The next section considers veto messages.
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Historical Evidence: Veto Messages
Direct evidence for the norm of restrained veto usage in the early republic is difficult to
isolate. The corrected norms account claims that we observe fewer vetoes in the early republic
because the early presidents signed bills later presidents might have vetoed. We cannot observe
the early presidents signing bills they would have vetoed had they been influenced by different
norms. We can, however, observe several instances in which the early presidents signed bills
they considered vetoing, as well as the reasons they gave. These instances are discussed in the
following section. We can also, following McCarty, look at the reasons the early presidents gave
for rejecting bills, and compare them to the reasons given by the later presidents. This latter
approach reveals that the first six presidents issued only constitutional and policy vetoes,
consistent with the corrected norms account. Only later presidents, beginning with Andrew
Jackson, have issued adversarial vetoes. The emergence of this third veto type accounts for the
historical discontinuity in veto frequency.
Categorizing the veto messages is an unavoidably interpretive endeavor. Nevertheless, it
would be hard to miss the differences between Jackson’s Maysville Road veto and Washington’s
apportionment veto, or even Madison’s bank veto. The veto messages issued by Washington,
Madison, and Monroe follow a particular form and adopt a distinct tone. They are direct,
concise, and reserved. They never enter the partisan fray by acknowledging that differences of
opinion can be traced to particular men or groups of men. Disagreement, if admitted, is presented
as though it were disembodied. This is precisely what one would expect from presidents who
wished to rise above parties and “to govern like the common father” of the nation.
Washington’s veto of “An act for an apportionment of Representatives…according to the
first enumeration” (Apr. 5, 1792) is straightforwardly constitutional in nature. He states that the
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“Constitution has prescribed that Representatives shall be apportioned among the several States
according to their respective numbers” and “that the number of Representatives shall not exceed
1 for every 30,000” (Richardson 1897, 116; Art I, Sec. 2). He then says that the bill on his desk
is inconsistent with those provisions—and nothing more.
Washington’s veto of “An act to…fix the military establishment…” (203-4; Feb. 28, 1797)
fits the above description of a policy veto. This veto is consistent with McCarty’s claim that the
early presidents were not bound by constitutional norms. Washington makes no mention of the
Constitution whatsoever. Instead, he offers four fairly narrow objections: (1) that if the bill
passed, the soldiers on the frontier would not be properly compensated for their services, (2) that
the soldiers dismissed by the bill are currently on an important mission, (3) that the soldiers were
paid up front and have only served one-third of their enlistments, and (4) that the bill does not
make adequate provision for cavalry. These are precisely the kinds of objections you would
expect from a commander-in-chief correcting the legislature’s errors.
There were no vetoes for the next fourteen years. Madison’s vetoes of “An act incorporating
the Protestant Episcopal Church in…Alexandria” (474-5; Feb. 21, 1811) and “An act for the
relief of…the Baptist Church Salem Meeting House” (475; Feb. 28, 1811) are also
straightforwardly constitutional. Madison refers to the establishment clause in both messages.
His veto of “An act providing for the trial of causes pending in the respective district courts…”
(496; Apr. 3, 1812) refers to a mixture of constitutional and policy considerations. Madison says
that the bill, by requiring that members of the Supreme Court perform the duties of district court
judges, effectively appoints new judges via the legislative, as opposed to the executive authority.
This is an example of the president’s use of the veto to protect against encroachment by the
legislature. Madison also says that the bill would be unfair to Supreme Court judges, by giving
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them new tasks without additional compensation. His veto of “An act supplementary to the acts
heretofore passed on the subject of an uniform rule of naturalization” (508; Nov. 5, 1812) is
technically a pocket veto, but he sent a veto message anyway. He objected to the bill because it
might be abused “by aliens having no real purpose of effectuating a naturalization.” He then calls
for a bill providing the proposed benefit while preventing the aforementioned abuse.
Madison’s veto of “An Act to incorporate the subscribers to the Bank of the United States”
(540-42; Jan. 30, 1815) explicitly brackets questions of constitutionality and instead objects to
the bill because it “does not appear calculated to answer the purposes of reviving the public
credit, providing a national medium of circulation, and of aiding the Treasury by facilitating the
indispensable anticipations of the revenue and by affording to the public more durable loans.”
Finally, his veto of “An act to set apart…funds for internal improvements” (569-70; Mar. 3,
1817) specifically mentions the enumerated powers in Art. I, Sec. 8, the necessary and proper
clause, and the common defense and general welfare clause. These latter two vetoes pose an
interpretive challenge because internal improvements and the bank were issues that divided elite
opinion. Yet Madison manages to “rise above parties” by restricting his discussion to meansends reasoning in the former and specific constitutional provisions in the latter. At no point does
Madison enter the partisan fray by acknowledging combinations of men holding different views.
Monroe’s veto of “An act for the preservation…of the Cumberland road” (711-12; May 4,
1822), the last veto of the early republic, comes closest to abandoning the precedent established
by Washington and Madison. Nevertheless, Monroe follows Madison’s constitutional reasoning
in his own internal improvements veto. Instead of saying that certain men hold a different
opinion about the constitutionality of internal improvements, he adopts a detached tone, for
instance: “it has never been contended that the power was specifically granted. It is claimed only
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as being incidental to some one or more of the powers which are specifically granted.”
Curiously, Monroe ends the message by suggesting that he would have given the reasons for his
objections “if I had time to reduce them to such form as to include them in this paper.” He says
that he has “occasionally committed [his] sentiments to paper” and then admits that the veto
message is a specific genre governed by norms: “The form which this exposition has assumed is
not such as I should have given it had it been intended for Congress.”5 No vetoes were issued for
another eight years.
Jackson’s vetoes, in particular his Bank and Maysville Road vetoes, break new ground.6 In
his veto of “To authorize a subscription of stock in the Maysville…Road Company” (May 27,
1830), Jackson immediately enters the partisan fray, suggesting that he is “sincerely friendly to
the improvement of our country by means of roads and canals” and that he regrets “that any
difference of opinion in the mode of contributing to it should exist between us” (1046). He later
refers to the “real friends of internal improvement” (1051). “Friend” and “friendly” were
euphemisms for partisanship in the period. Jackson explicitly acknowledges embodied
disagreement; he mentions “diversity of sentiment among public functionaries” (1046).
Moreover, Jackson knows that what he is doing could be considered distasteful: “if in stating this
difference I go beyond what the occasion may be deemed to call for, I hope to find an apology in
the great importance of the subject” (1046). He also acknowledges that there are distinct interests
in society, something no previous president had done in a veto message: “I have given to [the
bill’s] provisions all the reflection demanded by a just regard for the interests of those of our
fellow-citizens who have desired its passage” (1050). He refers to the “laboring and less
prosperous classes of the community” (1052) and the “deleterious influence of combinations”
(1055). He says his opinions “have frequently placed me in opposition to individuals as well as
29
communities whose claims upon my friendship and gratitude are of the strongest character”
(1056). At 5,486 words, the Maysville veto message was over four times longer than any
previous message and over 1,000 words longer than the previous nine veto messages combined.7
Like the Bank veto, it reads more like a manifesto than the earlier veto messages.
Jackson’s veto of a bill “To modify and continue the act entitled ‘An act to incorporate the
subscribers to the Bank of the United States’” (Jul. 10, 1832) is even more clearly adversarial. It
impugns the motives of the “friends” of the bill:
Whatever interest or influence, either public or private, has given birth to this
act...It is to be regretted that the rich and powerful too often bend the acts of
government to their selfish purposes...Many of our rich men have not been
content with equal protection and equal benefits, but have besought us to make
them richer by act of Congress. By attempting to gratify their desires we have in
the results of our legislation arrayed section against section, interest against
interest, and man against man, in a fearful commotion which threatens to shake
the foundations of our Union. (1153)
The implication, of course, is that Jackson’s enemies are venal toadies of the rich and powerful.
The bank veto is also notable for what it did but did not have to do. Instead of merely claiming
that the bill was inconsistent with the Constitution, it extends for pages and pages and even
advances a departmentalist theory of constitutional interpretation (see Whittington 2007). The
key point is that it is almost impossible to imagine any of the “patrician” presidents of the early
republic issuing such an inflammatory veto message. It would have impugned the character and
violated the self-conception of any of the first six presidents.
Jackson’s veto messages were unique in the later period only in their vehemence. By
30
violating the norm against adversarial vetoes while retaining popular support, Jackson subtly
altered the range of justifications available to future presents. Following Jackson’s lead,
subsequent presidents openly acknowledged opposition. Tyler entered the partisan fray,
suggesting that men “entertained different and conflicting opinions” (1916, Aug. 16, 1841).
Reflecting the new, populist justification of the veto (discussed more fully below), Tyler says
that his “duty is to guard the fundamental will of the people themselves from…change or
infraction by a majority in Congress” (1922). Acknowledging the now adversarial nature of the
veto power, Tyler says “a collision, extremely to be deprecated, as such collisions always are,
has seemingly arisen between the executive and legislative branches of the Government” (2039).
Furthermore, Tyler reverses the early republic’s presumption in favor of the legislative authority:
“In a case of clear and manifest error on the part of the President the presumption of the
Constitution is that such majorities [two-thirds] will be found” (2042, Aug. 9, 1842).
In his veto message of May 3, 1854, Franklin Pierce, again acknowledging party feeling,
wrote, “the Federal Government in its present form emerged from the conflict of opposing
influences which have continued to divide statesmen from that day to this” (2784). Piece also
openly admits to his adversarial framing of the issues: the “prominent point of difference
between those who have been regarded as the friends of a system of internal improvements by
the General Government and those adverse to such a system has been one of constitutional
power, though more or less connected with considerations of expediency” (Aug. 4, 1854, 2790).
The fact that constitutional disagreements divided the parties in the Jacksonian era does not
undermine the claim that the later internal improvement vetoes were adversarial, as the contrast
with Madison’s and Monroe’s vetoes demonstrates. The difference is that by invoking the
Constitution’s enumerated powers, later presidents could easily signal their partisan allegiances.
31
The discourse through which vetoes were legitimated had been reshaped.
A skeptic of the norms account might argue that the above discussion merely reflects a
development in rhetorical conventions. However, these rhetorical conventions reflect underlying
attitudes toward the veto that correlate with observed patterns of veto usage. Changes in rhetoric
and behavior went hand-in-hand. Presidents who adopted the “above party” rhetorical
conventions vetoed far fewer bills than presidents who utilized adversarial rhetoric.
Historical Evidence: Stillborn and Hesitant Vetoes
Further evidence for the corrected norms account would be some indication that the early
presidents were willing to sign bills they opposed on policy grounds, and that their hesitancy in
vetoing bills was motivated by their conception of partisanship and propriety Unfortunately,
presidents do not always leave behind an account of their deliberations. Nevertheless, in the early
republic, there are at least six examples of vetoes considered but not issued, as well as one
example of a veto issued with significant trepidation (some examples from Thomson [1978]).
More than any other president, George Washington understood that his actions would
influence the office of the presidency for years to come. In the spring and early summer of 1789,
Congress debated a tonnage bill that would raise revenue for the new nation. James Madison
introduced the principle of discrimination into the bill, by which nations with a commercial
treaty with the United States would pay a lower duty. Great Britain did not yet have a
commercial treaty with the United States, and higher duties were seen as a way to bring Britain
to the bargaining table. The Senate disagreed with the House, and struck discrimination from the
bill, to which the House acquiesced. In response to a letter from David Stuart (who had
suggested that the Senate’s position on discrimination was unpopular), Washington wrote:
32
The opposition of the Senate to the discrimination in the Tonnage Bill, was so
adverse to my ideas of justice & policy, that, I should have suffered it to have
passed into a Law without my signature, had I not been assured by some members
of that body, that they were preparing another Bill which would answer the
purpose more effectually without being liable to the objections, & to the
consequences which they feared would have attended the discrimination….
(Crackel 2008, Jul. 26, 1789, emphasis in original)
Not only did Washington sign the tonnage bill lacking the discrimination he favored, he indicates
that he would have allowed the bill to become law even without assurances from members of the
Senate that a new bill would be passed satisfying the objectives of discrimination. At this time,
Washington was so hesitant to use the veto power that allowing the bill to become law without
his signature was as far as he was willing to go to register his objections.8
In September 1789, while Congress debated a bill setting the salaries for members of the
House and Senate, Washington wrote the following to Madison: “Being clearly of opinion that
there ought to be a difference in the Wages of the Members of the two branches of the
Legislature would it be politic or prudent in the President when the Bill comes to him to send it
back with his reasons for non-concurring” (Crackel 2008, c. Sep. 8, 1789)? Madison’s reply has
not been located, but Washington signed “An Act for allowing Compensation to the Members of
the Senate and House…” which set the salaries of members of both houses at $6 per day (1 Stat.
70-72, Sep. 22, 1789).
The most familiar example of a veto considered but not issued is the bill establishing the first
national bank in 1791. In memoranda requested by Washington, both Jefferson and Attorney
General Randolph argued that the bill was unconstitutional. It was in Jefferson’s memo asserting
33
the unconstitutionality of the bank bill that he argued that the president should defer to the
legislature in doubtful cases (see above, p. 23). Washington asked Madison (another opponent of
the bill) to draft a veto message, and Madison apparently expected a veto. We do not know
whether Washington opposed the bill on policy grounds (most likely, he did not), but we do
know that he was exceedingly cautious in contemplating use of the veto power. Perhaps more
significant is that Jefferson, the future head of a political party opposed to the national bank,
argued for deference to the legislature when the legislature in this instance had sent Washington
a bank bill Jefferson opposed.
Washington again requested opinions from his advisers on a bill reapportioning the House of
Representatives in 1792. Secretary of War Knox and Hamilton favored the bill while Jefferson
and Randolph preferred a veto. Knox disclaimed any legal expertise, but remarked:
As then the Senate and house of representatives have passed this Law (by
small majorities indeed) and as the constitutionality is only doubted not proved
but the equity of the measure apparent, it would appear rather a delicate measure
for the President to decide the question contrary to the bill as passed.
If precedents are to be drawn from the conduct of the King of Great Britain in
similar cases of doubtful laws, it would render the propriety of the President’s
disapprobation still more questionable. (Crackel 2008, Apr. 3, 1792)
Washington ultimately sided with Jefferson and Randolph, but with trepidation. After Madison,
Jefferson, and Randolph drafted the veto message, “Randolph carried it to [Washington] and told
him we all concurred in it. He walked with him to the door, and as if he still wished to get off, he
said, ‘and you say you approve of this yourself.’ ‘Yes, Sir, says Randolph, I do upon my honor’”
(Oberg and Looney 2008–2016, Apr. 9, 1792, emphasis added). This veto was not “stillborn,”
34
but it illustrates the extreme caution with which Washington used his veto pen.
Washington later suggested to Edmund Pendleton that “from motives of respect to the
Legislature (and I might add from my interpretation of the Constitution) I give my Signature to
many Bills with which my judgment is at varience [sic]” and that to reject a bill can “only be
justified upon the clear and obvious ground of propriety” (Crackel 2008, Sep. 23, 1792).
In 1810, James Madison signed “An Act fixing the compensation of public Ministers….” Yet
“according to Robert Smith’s later recollection [Madison] had such ‘strong objections’ to [the
bill] that he ‘utterly disregarded its provisions.’ Smith added that [Madison] deemed it
inexpedient either to veto it or to recommend its modification, and instead ‘at a late period of the
session’ [Madison] ‘pressed me much to prevail upon some member to introduce, with that view,
a bill into Congress’” which Smith declined to do (Stagg 2010, Apr. 27, 1810).
In an 1826 letter to the marquis de Lafayette, Madison explained why he did not veto the bill
establishing the Second Bank of the United States in 1816, despite the fact that his “construction
of the Constitution on this point [had] not changed.” He says that he acquiesced to the opinion of
the people, previous administrations, and the states, and that he “did not feel [him]self as a public
man, at liberty to sacrifice these public considerations to [his] private opinion.”9
Perhaps the most interesting example of a stillborn veto comes from the Missouri debate
during the presidency of James Monroe. Monroe actually drafted a veto message (c. December
1819) objecting to (a) a restriction on slavery in Missouri as a condition of statehood, and (b) a
restriction on the expansion of slavery. With respect to the latter, he worried that “should the
slaves be confined to the States in which slavery exists…at no distant period the whole country
will fall into the hands of the blacks” (Cong. Globe, 30th Cong., 2d Sess., app. 67, Note F). In a
subsequent letter to Judge Roane of Virginia (Feb. 16, 1820), Monroe questioned the
35
constitutionality of restrictions on slavery in the territories.
The compromise bill Monroe eventually signed did not impose restrictions on Missouri, but
did prohibit slavery north of 36°30’ in the rest of the Louisiana Purchase. In the same letter to
Judge Roane, Monroe gave a clue as to why he withheld his veto, despite the inclusion of a
restriction on slavery in the bill: “If the right to impose a restraint exists, and Congress should
pass a law for it, to reject it as to the whole of the unsettled Territory might, with existing
impressions in other quarters, affect our system” (Cong. Globe, 30th Cong., 2d Sess. app. 67,
Note G). Here Monroe, like Washington before him, is alluding to the possibility of his veto’s
being interpreted in sectional—perhaps even self-interested—terms. Despite his doubts about the
constitutionality and expediency of the Missouri Compromise’s restriction on slavery north of
36°30’, he signed the bill.
In sum, despite misgivings on policy grounds, the early presidents signed six of the seven
bills in the examples above. Washington explicitly mentions propriety and party as concerns.
Jefferson, at least as Secretary of State, urged caution in the use of the veto power even while
opposing the 1791 bank bill. Washington opposed the tonnage bill but did not even consider
issuing a veto. Madison deemed it inexpedient to veto a bill to which he had “strong objections.”
He also referred to the critical distinction between public and private interests. And Washington
issued the nation’s first veto, but not without eliciting advice from his closest advisers, and after
having had the bill in his possession for ten days.
A final remark: the norms account of veto usage in the early republic is not so narrowly
conceived as to suggest that presidents are powerless. The desire to avoid a veto, as in Monroe’s
case, can result in attempts to ensure that an acceptable bill is passed. By threatening a veto of
the Missouri bill, Monroe got a bill he could swallow.
36
Continuity and Change
The norm of restrained veto usage did not so much disappear as lose its hegemony in the
early Jacksonian era. A new—adversarial and populist—justification for use of the veto power
was layered on top of the older constitutional and policy justifications (Orren and Skowronek
2004). Some presidents continued act in accordance with the norm throughout the antebellum era
(Spitzer 1988, 39-59). The Whig platform in 1844, for example, calls for “a reform of executive
usurpations,” a reference to Jackson’s vetoes (Johnson and Porter 1973, 9).10 Accordingly, no
Whig president ever vetoed a bill.11 Even Democratic presidents sometimes paid homage to the
older ideal. Polk, for example, noted that “it has been urged by those who object to the exercise
of this undoubted constitutional power that it assails the representative principle and the capacity
of the people to govern themselves; that there is greater safety in a numerous representative body
than in the single Executive created by the Constitution, and that the Executive veto is a ‘oneman power,’ despotic in its character” (Richardson 1897, 2513). Nevertheless, in the 1820s and
1830s the veto power was reframed and reconceptualized—by men like Martin Van Buren
whom Skinner refers to as “innovating ideologists”—as an action that could be undertaken in
defense of the people’s will against a partisan minority.
Developments with respect to the justification of the veto power tracked the transition—
roughly 1824-1840—toward the legitimacy of the two-party system (see Hofstadter 1969).
Before the veto could be used as an adversarial weapon (either by the president or the
legislature), explicit partisanship had to be legitimated. Interestingly, partisanship was initially
justified in the anti-partisan terminology of the eighteenth-century opposition tradition. Instead
of rising above parties, presidents beginning with Jackson began to fight against parties by
claiming the mantle of “the people” against corrupt combinations. This is why the
37
acknowledgment of “embodied opposition” in the later veto messages is central to the corrected
norms account (see above, pp. 25, 28).
The means by which the “party system” was eventually legitimated are well known, so only a
brief summary is provided here. The collapse of the first party system —attributable to the
Federalists’ stance in the War of 1812—opened the door to a new kind of political party.
Moreover, the passing of the revolutionary generation from the political scene allowed a new
generation, led by men who had not been raised on the party ideas of the eighteenth-century, to
exert their influence (on generational replacement, see Magliocca 2007).
There were actually three interconnected developments: political, economic, and ideational.
First, intraparty confusion among Republicans (e.g. the five-way race for the presidency in 1824)
created conditions in which a new mass political party could be formed. For example, in a 1817
letter, William Crawford (one of the five candidates in 1824) suggested that “it is certain that the
great depression of the Federal party…cannot fail to relax the bonds by which the Republican
party has hitherto been kept together” (quoted in Peart 2014, 109). These changes in the political
environment altered the incentives associated with party building. The relaxed bonds mentioned
by Crawford could then be solidified in a new way.
Second, the “market revolution” forced political leaders to reconceptualize the role of the
economy in a republican polity. As more and more Americans participated in the market, the
traditional agrarian conceptualization of republicanism became increasingly untenable.
Furthermore, the diversification of the economy cast increasing doubt on the republican
tradition’s conception of a homogeneous—and thus unified—public. Economic developments
were therefore closely tied to processes of democratization (Watson 2006).
Third, as argued by Kruman (1992, 519), “the strains of revolutionary republicanism evident
38
in the 1820s were absorbed and transformed by the political parties of the second American party
system.” This third development merits further discussion. The legitimation of party
organization—and adversarial vetoes—did not require the repudiation of republican doctrine,
only its transformation. Unlike the earlier generation, which saw parties and factions—by
definition, self-interested—as threats to the public good, ideational entrepreneurs began to see
political parties (or at least their political party) as defenders of the public good. For a group of
men who constantly worried about the revival of the Federalist Party, whether by that name or
disguised under another (National Republicans), only a permanent organization of committed
republican partisans could save the nation from ruin. By representing the nascent Democratic
Party as the protector of “the people” against the designs of the corrupt few, the veto power
could then be represented as a defense of the people against the agents of corruption. When the
president stands at the head of the party representing the “great body of the people,” his use of
the veto power, even for adversarial purposes, can be justified on solid republican grounds.
Previous presidents saw themselves as protecting the public good by rising above parties—
without taking sides—whereas later presidents began to see themselves as protecting the public
good by fighting against parties. This is exactly how Jackson saw the veto power. Since Jackson
justified his vetoes as defending the people, he was willing to have his actions judged by them:
“if sustained by my fellow citizens, I shall be grateful and happy” (Richardson 1897, 1154). It is
also no coincidence that a president who saw the veto in this way would be susceptible to
McCarty’s blame game. But this reinterpretation of the veto as a weapon rather than merely a
check was necessary for the emergence of blame game vetoes.
Norms vs. Constitutional Norms
This section asks whether McCarty’s critique of the constitutional norms account applies,
39
mutatis mutandis, to the corrected norms account. McCarty (2009, 370-4) presents four
arguments against the constitutional norms view: (1) debate at the constitutional convention over
the veto centered on form rather than scope; (2) at least three of the first ten vetoes were on
policy grounds, and an additional two were policy disagreements clothed in “the language of
constitutionalism;” (3) diminished support on motions to override indicates that Congress did not
seek impose “a norm of legislative supremacy;” (4) as state constitutions were revised after
ratification, no state eliminated the executive veto, and many states added one.
None of these arguments apply with equal force to the corrected norms account. First, to the
claim that the founding debate over the veto centered on form rather than scope, it should be
noted that there was a brief discussion of the scope of the negative at the Convention. The veto,
or negative, was at this time a general term for prohibiting a proposed action. Madison famously
favored a congressional negative on state laws, and the Convention occasionally discussed the
two vetoes without differentiating them. And there was disagreement about the proper scope of
the negative on state laws. Pinkney moved “that the National Legislature shd. have authority to
negative all Laws which they shd. judge to be improper” (Farrand 1911, 164). Dickenson
“deemed it impossible to draw a line between the cases proper & improper for the exercise of the
negative” (167). Sherman disagreed (166). Gerry “had no objection to authorize a negative to
paper money and similar measures” (165). Williamson opposed “giving a power that might
restrain the States from regulating their internal police” (165). Butler “was vehement agst. the
Negative in the proposed extent” (168). Although the negative on state laws was not approved,
the convention was divided on questions of scope.
McCarty is correct that the discussion of the executive veto centered on form rather than
scope, but that discussion demonstrates considerable ambivalence. For instance, Franklin noted
40
that in the proprietary government of Pennsylvania the “negative of the Governor was constantly
made use of to extort money” (99). Butler remarked that “gentlemen seemed to think that we had
nothing to apprehend from an abuse of the Executive power. But why might not a Cataline or a
Cromwell arise in this Country as well as in others” (100)? Additionally, there was extensive
discussion about whether the executive should be unitary or plural, including serious concerns
about discretion in the unitary executive. In short, even though the Convention failed to codify a
restriction on the scope of the veto power, its debates certainly reflected expectations about how
the power should be used.
Second, the fact that anywhere from three to five of the first ten vetoes were based on policy
disagreements is evidence against the constitutional norms view, but not against the corrected
norms account described in this article. It was considered acceptable to reject bills on
constitutional and policy, but not adversarial, grounds.
Third, the claim that diminished support on motions to override indicates that Congress did
not seek to impose “a norm of legislative supremacy” or a “norm against policy vetoes” is
consistent with the corrected norms account. Recall that the president could be expected to “rise
above parties” in part because of her unique institutional role. Diminished support on motions to
override could reflect the president’s legitimate interposition on the grounds mentioned by
Jefferson and Hamilton (see above, p. 23). Indeed, most of the early vetoes were ignored or
applauded by contemporaries.12
Finally, the fact that many states added a veto provision to their constitutions, and that no
state restricted the scope of the veto, does not demonstrate that no norm against adversarial
vetoes existed. Interpreting the fact that many states added a veto provision as evidence that no
norm constrained the president’s veto is problematic. Furthermore, McCarty does not mention
41
two important facts. First, many of the states that added a veto to their constitutions did not do so
with the Constitution’s familiar two-thirds majority override threshold. Of the fifteen states that
entered the Union from 1790-1845, three came in with a simple majority override threshold, six
with a two-thirds threshold, two with a veto exercised by an executive council, and four with no
veto at all. In the period prior to the Civil War, it was not until 1846 that states entered uniformly
with a two-thirds override threshold. Second, of the original thirteen states, only four started out
with a governor’s veto with two-thirds override; initially, seven states had no veto, one had a
council-veto, and one had a veto that could be overridden by a simple majority. Of the original
states, only New York and New Jersey changed their veto provisions prior to the Civil War: New
York replaced its council-veto in 1821 and New Jersey added a veto with a simple-majority
override in 1844.13 Thus, although no states eliminated the veto power, the evidence from state
constitutions—especially continued use of the council-veto, simple majority override, and no
veto at all—reflects far more ambivalence about the veto than McCarty’s argument suggests.
Conclusion
This article has argued that Nolan McCarty’s recent contribution to the debate over the veto
power in the early republic is illuminating yet incomplete. McCarty is correct that the early
presidents vetoed bills for reasons other than their constitutionality. Dispelling this myth is a
necessary step in the development of our understanding of the veto power’s historical dimension.
Unfortunately, by treating “constitutional norms” as equivalent to norms in general, McCarty
rejects the most compelling account of the paucity of vetoes in the early republic: that the early
presidents vetoed fewer bills than their successors because use of the veto power under certain
circumstances and for certain reasons was considered illegitimate in the political culture of the
early republic. The early presidents allowed bills they opposed to become law because they
42
lacked the necessary ideational tools. The account of the early presidents’ vetoes offered in this
article provides a new perspective on and new evidence for what might be considered the
orthodox account. Nevertheless, it would be a mistake for scholars of the presidency and
American political development to proceed as though norms had no significant impact on the
early presidents’ veto behavior.
There is an additional virtue in McCarty’s account. He has used the tools of rational choice
and statistical modeling to independently corroborate the “break point” in the development of the
veto power advanced by the norms account. It is encouraging that McCarty’s veto bargaining
account and the corrected norms account single out 1829—the beginning of Jackson’s
presidency—as significant. McCarty is again right that patterns of veto behavior differed before
and after 1829, but the presence or absence or certain institutional conditions is not sufficient to
explain the observed differences. This article has suggested that electoral reform is merely one
factor in a more complicated set of historical changes including democratization, generational
replacement, and innovation in the norms and ideas associated with executive power. The
legitimation of the adversarial veto in Jacksonian America altered the use of the veto power.
Both institutional and ideational preconditions mattered
Notes
1
Consider President Obama’s veto of Oct. 22, 2015: "Republican congressional leaders" are
"plotting their payback: a massive public-relations campaign designed to portray the president as
indifferent to the sacrifices of service members, willing to reject a bill that authorizes their pay
and benefits during a time of war" (Politico, Oct. 22, 2015).
2
McCarty tests for structural break in each year from 1823 to 1845 and finds that the most
43
likely break year was 1829.
3
I thank an anonymous reviewer for emphasizing this point.
4
For evidence of uptake of this story, see Louis Guillaume Otto to Comte de Montmorin,
Oct. 23, 1787 in Kaminski et al. 2009.
5
See Richardson 1897, 713-53.
6
See the editorial in the National Intelligencer, Jul. 3, 1830. This is of course an opposition
newspaper; nevertheless, its analysis, stripped of its normative overtones, is historically accurate.
See also Mayo 1979.
7
On the length of veto messages, see Gleiber and Shull 1999 .
8
One difficulty in evaluating the very early vetoes is that the status quo was radically empty.
Washington may have preferred a tonnage bill he hated to no tonnage bill at all.
9
Division of Rare and Manuscript Collections, Cornell University Library, #4611 Box 72,
folder 10.
10
The Democratic platform of the same year states, “we are decidedly opposed to taking
from the President the qualified veto power” (Johnson and Porter 1973, 4).
11
John Tyler (elected on a Whig ticket) was expelled from the party in September 1841.
12
An exception is Madison’s veto of the bonus bill (New-York Herald, Apr. 2, 1817).
13
Override threshold data from McGrath, Rogowski, and Ryan 2015, table 3.1.
44
Table 1: Veto Types
constitutional
policy
adversarial
bill violates specific provisions of the constitution
bill is poorly drafted, does not attend to important considerations accessible to
the president
bill reflects the interests of a recognizable opposition; veto message invokes
governing principles that divide president and opposition; message
acknowledges an embodied opposition
45
Figure 1: Vetoes Per Term (1789-1861)
Source: Presidential Vetoes, 1789-1988 (1992). Bars represent the number of vetoes (regular and
pocket) issued in each presidential term.
46
Figure 2: Electoral Reform
Source: Guide to U.S. Elections (2010, 820-822), Keyssar (2000, Table A.2). The solid line
represents the proportion of presidential electors selected by popular vote in each year. The
dashed line represents the extent of property and taxpaying requirements in each year, where 1
represents both taxpaying and property requirements, and 0 represents neither. Property and
taxpaying requirements are weighted by each state’s electoral votes.
47
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