MVB Senate speech on the vice president's Senate powers, 12-13 February 1828
MR. VAN BUREN’S OBSERVATIONS
THE SENATE OF THE UNITED STATES,
On Mr. FOOT’S amendment to the Rules of the Senate, by which it was proposed to give the Vice President the right to call to order for words spoken in debate.
Mr. VAN BUREN said, he had not been disposed to partake largely in the present debate. He did not believe that any difficulty was likely to arise from leaving the rules as they had stood from the commencement of the Government, and was not at all apprehensive of the undue exercise of the restrictive power now proposed to be conferred on the Vice President. He had, therefore, felt almost indifferent as to the fate of the amendment; but the progress and character of the discussion had greatly increased the interest of the subject. Principles had been advanced, and earnestly supported, against which he felt it to be his duty, at least, to protest. Nay, more; such was his repugnance to the doctrines he had heard, so deep was his conviction of the error in which they were founded, that he could not, without being disloyal to the most sacred of his official duties, refrain from resisting them.
It could not, he was persuaded, be necessary to say, that in expressing himself thus strongly, it was not his intention to question, much less to assail, the motives of those with whom he differed. He was not in the habit of doing so: and, if he could ever so far forget what was due to his brethren, as well as to himself, the sincere personal respect which he felt for the Senator from Louisiana, by whose remarks he had been induced to continue the debate, would restrain him. He had no doubt gentlemen honestly entertained the opinions they had advanced, and it was, therefore, their right to sustain them with the spirit and zeal which they had manifested on the present occasion. It was the correctness, not the integrity, of those opinions, that Mr. Van Buren meant to controvert. It was to carry them out to their legitimate results, and present them in their true and exceptionable character, that he had risen. To do this the more effectually, he would endeavor to strip the subject of all irrelevant matter, to check the discursive character of the debate, and bring the questions before the Senate in their natural order and most simple form.
The first of these questions, said he, is the extent of the rights of the Vice President under the rules as they stand. It is one, comparatively speaking, of but little importance. There are but two views in which it can be regarded as at all material. The one relates to the propriety of further legislation on our part; and the other gives it importance only from its bearing upon the correctness of an opinion long since officially expressed by the present presiding officer. Mr. Van Buren said he had before remarked upon so much of the subject as relates to the effect of the old rules, and would not now detain the Senate by enlarging on that point. It appeared to him impossible, considering the phraseology and obvious sense of our rules, more especially when taken in connexion with those of the House of Representatives, that intelligent and unprejudiced minds could differ in opinion. The language, said he, is plain; the sense is plain; and from the injurious consequences of a construction, imparting this power to the Vice President without appeal, it is also plain, that such could not have been their original intent. Indeed, said he, I do not remember that, in the whole debate, it has been distinctly contended that the right given by the rules to Senators, to call to order, extended also to the Vice President. Some gentlemen have, it is true, (to use the language of the law,) by way of excluding a conclusion, imagined that there might be room for question upon the face of the rules; but I am quite confident that it has not been distinctly affirmed that they confer the power in dispute on the Vice President. Upon the other view of the matter, said Mr. V. B., a single word would suffice. Entirely free, as he could not but be, from personal prejudice on the one hand, and uninfluenced by individual partiality on the other, he felt no interest in the subject, save a desire, which he hoped was common to all, to see that justice was done to the conduct of a public officer who had discharged his official duties with fidelity and ability. He could not but think that the warmth of personal friendship, and the influence of party excitement, combined, had greatly magnified the importance of the matter in relation to the individual concerned. Surely no public man in this country, or in any other where reason and justice sway the public mind, is required to be infallible, or will be held responsible for more than the honesty of his opinions, and the fidelity with which he sustains them. If he err occasionally, it is because he is human; and so long as his motives, as in the present case, are above suspicion, he has nothing to fear from public censure. But it appeared to him that those who wish a confirmation by the Senate, of the opinion heretofore expressed by the Vice President, so far as the rules are concerned, could not desire a more distinct one than would result from the adoption of the amendment under consideration: for where is the man, in this great community, who would, for a moment, suppose that the Senate of the United States could spend days, not to say weeks, in gravely debating the propriety of conferring upon the Vice President a power already given by its rules? No one could, he was persuaded, be found capable of such injustice to the body.
He now approached another, and a more important view of the subject. It was the one that had called him up; and for entering upon its consideration he would make no apology. Indeed he would require an apology for himself, were he to omit it. Too much time, he said, could not be employed in probing and discussing a principle, in his view so fallacious and obnoxious as that which had been forced upon their consideration. His examination of it must, at this time, of necessity, be limited. The great principle so freely commented upon by the Senator from Louisiana, growing out of the implied powers claimed for this Government, and involving the distinction between such as are true and warranted by the text, and the fraudulent inventions of after times, is a matter of intense interest. A particular discussion, however, of the acts and assumptions referred to by the Senator from Louisiana, would now be out of place. But the period would, he hoped, soon arrive, when an opportunity would be afforded to discuss them at large, uninfluenced by immediate local interests or party consideration. When that day shall arrive-and he hoped it would not be more distant than the next session of Congress-he would, if his life were spared, seek occasion to say at least, fearlessly and frankly, all he knew, and all he believed, and all he feared upon the subject.
Failing, said Mr. Van Buren, to find in the rules, their warrant for the power in question, those who affirm its existence claim it under the constitution. With what justice this ground was taken, he would proceed briefly to consider. There are not, said he, greater enemies to the truth than confused and erroneous statements of the question. Their malign influence has been strikingly exerted on the present occasion. To it he attributed differences of opinion between himself and some with whom he seldom differed, and always with reluctance. What then, said he, is the true question? Is it whether the Vice President has any power to keep order in the Senate? By no means. No one could contend for a proposition so much at variance whith what was every day passing under our eyes. Those who assisted in the formation of this Government, were not so ignorant or inexperienced as not to know that an efficient power to preserve order was of vital necessity to every Legislative body. It was, therefore, provided by the Constitution, that “each House of Congress may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member.” In virtue of this power, the Senate, upon its first organization, adopted a set of rules prescribing the mode of its proceedings, and containing divers provisions upon the subject of order, declaring what its members might do, and what they should not be permitted to do. The enforcement of these rules is made the duty of the presiding officer, whether he be the Vice President or President pro tempore. Scarcely a day passes without the performance of some act by the presiding officer, in fulfilment of that duty. It is to these acts that gentlemen refer, in order to sustain a claim to a power altogether different. They do not perceive that these are acts of a merely ministerial character, in which the Chair acts as the organ of the Senate, subject to such control and supervision as this body may, from time to time, prescribe. In cases thus provided for, no difficulty has arisen, or can arise.
Another question has now been made, and it is this: It is contended that in addition to the conceded powers of the Chair upon the subject of order, “it is competent for the Vice President to call a Senator to order for words spoken in debate, upon the ground either that they do not relate to the subject under discussion, or on account of their otherwise exceptionable character.” That right is, by the rules, given to every Senator; but has not yet been conferred on the presiding officer. If, therefore, it exist, it must be derived from a source other than the rules of this House. Driven to this alternative, the gentlemen contend that it is derived from the Constitution itself; that it belongs to, and is inherent in the office: and it is to this view of the subject the question owes its great importance. Mr. V. B. said he was at a loss how to treat a pretension, in his conception so extravagant, in a manner consistent with the respect he entertained for those who had advanced it. He had, at an early period of the debate, when it had been alluded to-but not so formally and earnestly insisted on as now-made it his business to discredit, and, as far as allowable, to censure the doctrine contended for. Since that period, the matter had been discussed by his friends-from Delaware, (Mr. McLane,) Tennessee, (Mr. White,) Kentucky, (Mr. Rowan,) and Virginia, (Messrs. Tazewell and Tyler,) in a manner which he could not hope to equal. They had literally left nothing for the advocates of the inherent power of the Chair to stand upon. What, said he, are the provisions of the Constitution that bear upon the question? By the third section of the first article it is declared, “that the Vice President of the United States shall be President of the Senate: but shall have no vote, unless they be equally divided.” In the teeth of this express provision, it is gravely contended, not only that he shall have a vote where the Senate is not equally divided, but that he shall have the whole vote; and that, upon a question involving the freedom of debate, and by consequence the interests of our constituents. Again: By the fifth section of the same article, the rules of order, and the means of their enforcement are, in terms, subjected to the legislation of the Senate: but it is now as gravely contended that, this provision to the contrary notwithstanding, the subject (and as he would hereafter show, the whole subject) rests, by the true construction of the Constitution, in the discretion of the Vice President. And what, sir, said he, is the foundation upon which this high reaching pretension is founded? It is no other than the doctrine of implied powers. It is to register this, also, among the constructive powers of the Government and its functionaries, that the gentlemen on the other side invoke to their aid a principle which has already done such extensive violence to the Constitution-a principle which, as defined and practised upon by many of the public men of the day, leaves no other restriction upon power than the discretion or caprice of its possessor-a principle which, in the sence in which it is understood by many, is never so true to itself as when it is false to the Constitution. Relaxed as the sentiments of public men had become in regard to constitutional construction, still he could not have anticipated what appeared to him to be so flagrant a perversion of the doctrine of implied powers. What more should we say in reply? The implied power claimed for the Vice President is not only inconsistent with one provision of the constitution, but is expressly inhibited by another. The Constitution not only denies to the Vice President this right, by one provision Mr. V. B. had read, but expressly places it elsewhere by another which he had also read.
If, said he, direct inconsistency and express inhibition, cannot stay the march of implication, then has implication become too rampant for the words of soberness and truth. Let us, for one moment, said Mr. Van Buren, consider the consequences that must result from this doctrine, if, in an evil hour, it should be established. The Senator from Missouri, (Mr. Barton,) was evidently distressed by the consciousness of the alarming character of those consequences. He had endeavored to relieve himself by saying that this power would be subject to the regulation of the Senate, and, if abused, might be controlled by its rules. But, said Mr. Van Buren, this attempt does not exhibit the precision and correctness by which the views of that gentlemen are frequently recommended to our notice. He must either abandon his position, or seek other relief from the consequences of his own argument. If the power in dispute belongs to the office-if, as gentlemen say, it be inherent in the office, and be made so by the Constitution, it is wholly beyond our legislation. We have no right to touch it: to do so would be a high-handed encroachment upon the constitutional rights of the second officer of the Government. The power conferred upon him by our rules, upon the subject of order, is under our control. In these, his ministerial duties, he is our servant, and subject to our law. But you now propose to concede to him a high judicial power, and you trace his title to it to an authority higher than your own; an authority paramount to all-the Constitution.
You might, said Mr. V. B., with as much propriety undertake to explain, modify, or control, the executive power of the President of the United States, by your rules, as to control this power, if it springs directly from the Constitution. Gentlemen must excuse him, if laying out of view the words in which they see fit to clothe their propositions, he held them responsible, in argument, for their legitimate results. A course different from this would neither comport with the dignity of the occasion, nor the interest awakened by the subject. Among those results were the following: If the Vice President be made, by the Constitution, the judge of the propriety of our debate, and has the right to call us to order, when, in his discretion, he may think we violate that propriety, then are his rights and duties, in that respect, not only not subject to our legislation, but he would become the sole judge of the extent of this power, and the means of enforcing it, without any other direct responsibility than that secured by the right of impeachment. Then, too, has he the right to enforce his decision by punishing disobedience, and all the power of the Senate upon the subject must be subordinate to his. It was, in his judgment, idle to talk about the power to keep order without the means of enforcing decisions by punishment for disorder. The framers of the Constitution had taken a better view of the matter, by giving the Senate the right to punish for disorder, even to expulsion, as a necessary part of its control over the subject. If a similar power in the Vice President, be implied by the Constution, the means to enforce it are also implied. If a power in the Vice President to call to order for words spoken in debate, be implied, he must decide upon all questions growing out of its exercise, without being subjected to the control of the Senate. For, unless the positive provision of the Constitution is to be disregarded, he cannot vote with us unless the Senate be equally divided. These are, then, separate and distinct powers, traced to the same source, and acting upon the same subject matter; and one or the other must be supreme, or the whole will be vain and inoperative. Suppose the Senate, by its rules, allow to be in order what the Vice President, in virtue of his inherent right, holds to be out of order, which is to prevail?
The result, then, said Mr. V. B., of the doctrine contended for, when stripped of all necessary verbiage and extraneous considerations, is no more nor less than this: that it is within the constitutional competency of the Vice President, if, in the exercise of his best discretion, he thinks a Senator urges exceptionable matter in debate, or insist on matter that is irrelevant, to prohibit the prosecution of the debate, except upon such terms, and in such form, as the Vice President shall prescribe, and to exercise the means necessary to carry that power into effect, without authority or responsibility to this body, or to the individual Senators, save through impeachment.
He asked the indulgence of the Senate, whilst he submitted a few observations upon the character of the power proposed to be conceded to the Vice President, as appertaining to his office, and the nature and importance of the rights of the Senate now proposed to be surrendered. When I speak of their importance, I do not mean in reference to us, but to our constituents.
For what must be the character of the collisions which, in the course of events, can alone be expected to produce any thing like a marked exercise of this great power to control debate? Is it at all likely that they will arise from personal altercations among ourselves? Surely not. For their suppression the present means are ample. The Constitution and the rules of the Senate made under it, afford, of themseves, an ample shield for individual protection, if any shield be necessary; and he hoped no one would suppose that so craven a spirit existed within these walls as to make it necessary or even desirable to place this power in the hands of the Vice President, because we might be unwilling to protect ourselves. He was quite confident that no danger was to be apprehended from that quarter. If strong ground is ever taken upon this subject, said he, it will arise out of the intercourse of this body with the co-ordinate, and in some sense rival, departments of this Government. It is from our acts as they bear upon the Executive, and its inferior functionaries, and upon the Judiciary and its subordinates, that such a proceeding can alone be expected. From the present condition of things, abuse in that respect might not be likely to take place. But the present is not the natural state of things. In general, the President and Vice President will belong to the same political party. It is only when “times are out of joint,” that they will be taken from different sides. The present case is an exception growing out of that cause. In considering the future, you must contemplate a different condition of things, or you will not act wisely. It is only to guard against the abuses of political trust that constitutional restrictions are provided. Were it not for the inherent and inextinguishable disposition of man to abuse delegated power, they would not be necessary. Who, said he, can be blind to the consequences, that in the political agitations of the times, may be fairly apprehended from the possession of this power by the Vice President? Who cannot see what a tremendous engine it may become in the hands of an ambitious and still-aspiring Executive? That it may give him, through the agency of his political friend and coadjutor in this body, a complete and irresistible control over the debates of its members, and consequently over the extent and character of the information on public affairs to be given through us to the people?
The connexion of the Executive with the Senate, is much closer than with the House of Representatives. Upon the subject of treaties, appointments, and the whole range of Executive business, the Senate is almost the only check. It is, therefore, of vital importance, that it should be wholly exempt from Executive control. This body was looked to by the framers of the Constitution, as a sanctuary for the federal and equal rights of the States, and so framed as to cherish that sentiment on the part of its members. It is here alone that the federal principle had been preserved: a principle valuable to all, but particularly to the small States; for it is in this department alone that their perfect equality is recognised. But where, sir, will be its efficiency, if the doctrine contended for be established? When, hereafter, a Senator shall feel it to be his duty to attempt, language in which he may think the occasion requires, to arrest encroachment of the Executive, or to seek redress by exposing abuses of trust on its part, or that of any of its subordinates, he may find his lips closed, not indeed, as of old, by a gag law, but by a power far more effectual. He may perhaps be told, that although it is right to canvass freely the public acts of the President and his cabinet, it must be done in a manner more decorous; that their motives are not to be rudely scanned and discredited; that debates of that character, having a tendency unjustly to alienate the confidence of the people, are out of order; that if he will shape his periods according to the prescribed form, and measure the extent and bitterness of his denunciation by the administration standard, he may go on-but, if not, he must desist.
If, said he, it should hereafter become manifest to a portion, or even a majority of this House, that the third power of the Federal Government, created and supported by the other two, is gradually, though to the great mass of the people imperceptibly, subverting the reserved rights of the States, and undermining the Constitution of the United States, in some of its most essential points; and if, on a subject of such vital importance, the representative of a sovereign State should express himself on this floor in a manner calculated to suppress the mischief, but yet without just offence to propriety, he may expect to be told from that Chair, that although the acts of a co-ordinate branch of the Government, when coming properly before the Senate, are liable to free examination: yet the ermine of justice is not to be thus rudely assailed within these walls. Could there, he asked, be any principle which would more effectually prostrate the independence of this body? And was it to be endured, that the members of the Senate should shold the invaluable right of free debate, by so frail and humiliating a tenure? In his opinion the Senate would be wanting in what it owed to its constituents, to itself, to its true interests and dignity, if it could, for a moment lend its sanction to a principle so untenable and so dangerous. The Senate, heretofore, he said, had not been insensible to what belonged to its rights. It was but the session before the last that the Executive, in a communication to us, advanced a pretension incompatible with the constitutional rights of the Senate. And how was it received? It was not the exercise, but merely the assertion of a power, on his part-an assertion, it is true, wholly unsupportable; and he believed no one would deny, most unwisely put forth. And how, he asked again, had it been treated? Resolutions were introduced denouncing the unfounded assumption as an Executive encroachment that ought to be resisted. A disposition to do so, and to preserve and maintain the just rights of the body, not on our own account, but in behalf of those who sent us here, was then manifested, that in his judgment reflected the highest honor on the body. The question then agitated could not be compared, in point of importance, with that now under consideration. At most, it was a threatened trespass upon the constitutional rights of this House. What have we here? A principle which lays the axe at the root of the independence of the Senate, and the personal and dearest privileges of its members.
In every point of view, said Mr. V. B., in which this subject had presented itself to his mind, it had produced but one sentiment, and that was unqualified opposition to the prerogative claimed for the Chair. Although this claim of power is now, for the first time made, the principle in which it originates is as old as the Government itself. I look upon it, sir, as the legitimate offspring of a school of politics, which has, in times past, agitated and greatly disturbed this country-of a school, the leading principle of which may be traced to that great source of the political contentions which have pervaded every country where the rights of man were in any degree respected. I allude, sir, to that collision which seems to be inseparable from the nature of man, between the rights of the few and the many-to those never-ceasing conflicts between tha advocates of the enlargement and concentration of power on the one hand, and its limitation and distribution on the other: Conflicts which, in England, created the distinction between Whigs and Tories; the latter striving by all the means within their reach to increase the influence and dominion of the throne, at the expense of the common people; and the former to counteract the exertions of their adversaries, by abridging that dominion and influence for the advancement of the rights and the consequent amelioration of the condition of the people.
Collisions of opinion and of action of a character similar in principle have existed, although under different denominations, with different limits, and for different ends, in most countries, and in an eminent degree in this. Indeed the history of the struggles, the contests, the alternating victories and defeats of these two restless and rival principles, is the history of all republican governments-in fact, of all institutions formed for the protection of the liberty of conscience and opinion, and the freedom of the citizen. No where can its operation be more distinctly traced than in our own early history. They were the primitive elements, and animating causes of those Whig and Tory parties, which, from the first Congress of 1765, down to the glorious peace of 1783, on the one hand labored unceasingly to consolidate all legislative authority over these provinces in the single British Parliament, and to place all patronage, power, and influence, in the hands of the executive and judicial representatives of the Crown; and on the other hand, as boldly and perseveringly, but happily more successfully, vindicated by reason, eloquence, and finally by arms, the rights of the several American States, and the just powers of the immediate representatives of the people. The establishment of our independence put an end to these conflicts, in the form in which they had before been sustained; but what its effect was upon the spirit that produced them, could be better judged from an attentive consideration of our subsequent history. Attempts, said Mr. Van Buren, have frequently been made in later days, and recently by the highest authority in the Government,* to trace the origin of the two great political parties which have divided the country, from the adoption of the constitution to the present day. They have, for motives too obvious to require explanation, been attributed to causes which had either become obsolete, or been compromised by mutual concession-such as the early difficulties growing out of our relations with Great Britain and France, the expediency of a navy, or similar questions. There was one consideration, he said, that could not fail to arrest the attention of the most superficial observer. It was this. If these party divisions have sprung from no other cause than the temporary circumstances to which they have been attributed, why have they so long survived the causes that produced them? That they still exist, and exist in full vigor in a great portion of the Union, it would be an insult to our oservation and understanding to deny. The explanation of the mystery was to be found, and to be found only, in the falsity of the ascription. They arose from other and very different causes. They are, in truth, said he, mainly to be ascribed to the struggle between the two opposing principles that have been in active operation in this country from the closing scenes of the revolutionary war to the present day-the one seeking to absorb, as far as practicable, all power from its legitimate sources, and to condense it in a single head: The other, an antagonist principle, laboring as assiduously to resist the encroachments, and limit the extent of executive authority. The former has grown out of a deep and settled distrust of the People and of the States. It consequently regards as gain, every thing that can be drawn into the vortex of federal power, and as making that power still more safe in proportion as it is withdrawn from the popular departments of the federal government to those that are further removed from the control of public sentiment. The antagonist principle has its origin in a jealousy of power, justified by all human experience. It is founded on the assumption, that the disposition of man to abuse delegated authority is inherent and incorrigible; it therefore seeks its only security in the limitation and distribution of those trusts which the very existence of government requires to be reposed somewhere. Hence, the aversion of its supporters to grant more power than is indispensably necessary for the objects of society; and their desire, as an additional safeguard, to place that which is conferred in as many hands as is consistent with efficiency. The former is essentially the monarchical, and the latter the democratical spirit, of society. He wished not to be misunderstood. He used these terms, as more expressive of his meaning, than any that occurred to him. He had no idea that all, or even the great body of those who either now, or in times past, had been subject to the influence of the first principle, were in favor of the establishment of a monarchy in this country, any more than he believed that those who had shown their preference for democratical principles were in favor of the establishment of an absolute democracy-neither side had views thus extensive. The forms of both were repudiated, while their respective spirits were, to no considerable extent, retained. The earlier battles upon this cardinal point were fought upon the question of the degree of energy; or in other words, power that ought to be given to the Federal Government, at the expense of the States and the people. They commenced in the convention of 1787, and soon spread through the great body of the people, upon the question of ratification. The proceedings of that convention were for a long time secret, but are now before the public. In them, when taken in connexion with later events, we read the grounds of our subsequent political dissensions, in language so plain, that none but those who are willfully blind can be deceived. There were, of course, different degrees, as to individuals; but the leading division in the convention was between those who, distrustful of the States, sought to abridge their powers, that those of the new Government might, thereby, be enlarged, and those who, on their part, distrustful, perhaps jealous of the Government about to be created, and possessing full confidence in those of the States, were as strenuous to retain all powers not indispensably necessary to enable the Federal Government to discharge the specified and limited duties to be imposed upon it. The contest was animated, and, as it is well known, more than once threatened a dissolution of the convention, without agreeing upon any thing. Necessity, however, ultimately compelled a compromise. The terms were arranged as well as practicable. The then friends of State rights, (the true federalists, but who, by a single misnomer, were immediately after called anti-federalists, whilst those who had throughout opposed the federal principle, assumed the then more popular name of federalists,) succeeded, or thought they succeeded, in saving much of what they had so earnestly contended for. The advocates of what was in the language of the day called a strong General Government, certainly failed in obtaining by express grant, or necessary implication, much of what they had so long and so ably struggled to acquire for the new Government. The question of ratification came on, and was full of difficulty. The abuses to which some of the more general provisions of the Constitution might be exposed, were pointed out by its opponents. The concealed powers of the Constitution, which are at this day put forth with so much confidence, were disclaimed and condemned by those who advocated the ratification. No candid and well-informed man, will for a moment pretend that, if the powers now claimed for this Government had been avowed at the time, or even had not been expressly disclaimed, there would have been the slightest chance for the adoption of the Constitution, by the requisite number of the old thirteen States.**
But it was ratified, said Mr. V. B., and from the moment of its adoption to the present day, the spirit he had described, had been at work to obtain by construction*** what was not included or intended to be included in the grant. It was far from his intention to urge this as a reproach against the actors in those scenes. He was persuaded that the motives of many, if not of all, were pure, and even patriotic. They believed that the State Governments were not safe depositories of power: that the States would be able to control, and would injuriously control the Federal Government, unless it had more power than the convention of 1787 was willing to grant. They thought, and one of them with the ingenuousness of feeling which distinguished his noble nature, avowed officially, that the true question was, not what the framers of the Constitution intended, or what those by whom it was ratified understood, but what was the correct construction of the terms in which it was expressed. This great man knew well that the power then claimed for the Government, could be sustained on no other grounds, and he was always above disguise.
I am not, said Mr. V. B., condemning their motives, but controverting their opinions. The test that was then applied to the Constitution, has been adjudged erroneous and unjust, by the judges in the last resort-the people themselves. The belief (no doubt honestly entertained by many) that its application was necessary to the success of the scheme and to the welfare of the country, was founded in impressions as to the character of the State Governments, which experience has demonstrated to have been unfounded. Many of the most distinguished of those who then entertained those opinions, have since abandoned them, convinced by the results of that experiment which has since been made. Fifty years experience of the operation of the State Governments, has made “assurance doubly sure,” that they richly deserve the confidence which the people have ever been inclined to bestow on them. Under the broad shield of State laws, private rights have been protected, while public prosperity was promoted. In the darkest hours of war, when the General Government was disheartened and enfeebled by debt and disaster, its unnerved arm was strengthened, and the national honor rescued, by the authority, the patriotism, and the credit of the States. In peace they have not only fulfilled wisely and justly all the great purposes of self-government, but several of them have established noble systems of public instruction, or have accomplished or are now accomplishing great works of internal improvement, as far surpassing in magnitude and utility any similar works of the General Government, as they do in wisdom of plan, and economy and judgment in execution. A general surrender of such opinions, is, therefore, at this time, a tribute justly due to the redeemed and established character of the State governments. But they are not surrendered-on the contrary, they have become more and more extravagant, until those under whose protection they now are, claim for this government powers which were in express terms repudiated and denounced by the founders of this very school.
Mr. V. B. said, he would not feel himself at liberty to detain the Senate by following the track of the Government in its whole extent, and through all its sinuosities, to establish his positions, but he could not avoid doing so in part. The subject was one of deep interest, of which it behooved the American people to be fully informed, but which it was to be feared is more frequently spoken of than understood. The mass of our citizens are so much engrossed in the affairs of their State Governments, that this great matter is in no inconsiderable degree neglected.
During the administration of General Washington, no acts of a strong character took place, save the incorporation of the Bank of the United States, that great pioneer of constitutional encroachments, together with the principles avowed in relation to the treaty-making power. The attachment of General Washington to the Constitution, his consciousness of the difficulty which had attended its establishment, and the natural moderation of his character, coming in aid of the firm countenance maintained by the anti-federalists of that day, kept the spirit of encroachment and construction within bounds, that, compared with its present character, were reasonable. But in the administration succeeding that of General Washington, continuing through the years of 1797, ’98, ’99, it displayed itself in its true and most odious character. Its fruits were so bitter, and are so well remembered, that any thing like a minute description of them would be an act of supererogation. It was then that the monarchical and aristocratical character of the spirit he had described, was displayed in unceasing efforts to wrest from the States the powers that justly belonged to them, to exercise such as had never been conferred, and to concentrate, as far as practicable, all authority in the hands of the President.
Among the usurpations of the day, the alien and sedition laws stand in bold relief, not as furnishing land marks of the extent to which the presumption and arrogance of power dared to go, but also on account of their agency in driving from public confidence those by whom they were adopted. The inclination to draw the powers of the Government to one common focus, has been otherwise exemplified in various ways, and at different periods of our history. Time would only allow a brief notice of one or two of them.
The doctrine announced in the discussions on the British treaty, that the House of Representatives were bound to make all appropriations necessary to carry into effect the stipulations of a treaty made by the President and Senate, was a striking exemplification of this truth. The extent to which this doctrine increases the Executive power, (in its most enlarged sense,) over the funds of the nation, cannot fail to strike the mind at the first blush. He did not wish to be understood as saying, or insinuating, that all who advocated that opinion, were influenced by the spirit of which he had spoken. He did not believe that such was the case. On the contrary, he was well satisfied that there were those, on that occasion, as well as on that of the incorporation of the Bank of the United States, (and especially him who was at the head of affairs,) who were sincere friends to the State Governments, but were led away by the pressure of the times, and gave their assent to measures which, under more auspicious circumstances, they could not have approved. The principle then avowed was resisted by the republicans of that day, on the simple but intelligible grounds, that, so far as the treaty stipulation could be carried into effect without the aid of the House of Representatives, its interference would be unauthorized, because, by the Constitution, the treaty-making power had been conferred on a different department of the Government; but that, whenever the action of the House of Representatives, the more immediate agents of the people, was necessary, it must be free to give or withhold its assent, according to its best judgment, and upon its own responsibility; that the Constitution neither declared nor intended, that, in cases which might be of the greatest magnitude, it should be a mere machine to be worked by the other departments of the Government. The same disposition to limit the powers of the popular branch, was forcibly illustrated in the discussions on the “foreign intercourse bill” in 1798. It was upon that occasion contended, and successfully too, that the House of Representatives had no discretion upon the question of appropriation for the expenses of such intercourse with foreign nations as the President saw fit to establish-that they would be justly obnoxious to the imputation of gross delinquency, if they hesitated to make provision for the salaries of such foreign ministers as the President, with the assent of the Senate, should appoint. What would be the feelings of real and unchanged republicans, in relation to such doctrines, at this day? Associated with them was the bold avowal, that it belonged to the President alone to decide upon the propriety of the mission, and that all the constitutional agency which the Senate could of right have, was to pass on the fitness of the individuals selected as ministers. It was pretensions like these, said Mr. Van Buren, aided by unceasing indications, both in the internal and external movements of the Government, that produced a deep and settled conviction in the public mind, that a design had been conceived to change the Government from its simple and republican form, to one, if not monarchical, at least too energetic for the temper of the American people-a conviction which, beyond all doubt, produced the civil revolution of 1800, and for which no “oblivious antidot” has been yet discovered by those who were its victims. By that great event, the public sentiment was improved, our public councils purified, the spirit of encroachment severely rebuked, and, it was then hoped, extinguished forever. During Mr. Jefferson’s administration, and with a single exception, that of Mr. Madison, the government was administered upon the principles which the framers of the Constitution avowed, and which their constituents had ratified, and the people once and again confirmed. The charter of the Bank of the United States, was, after a hard struggle, suffered to expire; and the conceded and well-understood powers of the Government were found amply sufficient to enable it to perform the great functions for which it was instituted. During a great portion of the time the country was blessed with a degree of prosperity and happiness without a parallel in the world. At the close of Mr. Madison’s administration, a new bank was incorporated, and received his reluctant assent. It would be shutting our eyes to the truth to deny, or to attempt to conceal the fact, that that assent, coming from the quarter that it did, has had a most powerful and far from salutary influence on the subsequent course of the Government. Its author had himself, on a former occasion, demonstrated the want of power in the Federal Government to incorporate a bank, and his assent was now placed on the express ground that the recognition of the authority of the Government in relation to the old bank, by the State Governments and the courts, as well as the people, had precluded the question of constitutionality. Thus the power in question must stand as a successful interpolation upon the text of the Constitution. This great precursor was again followed by other attempts, but of a restricted and qualified character, to extend the same principle to other topics of legislation. They were, however, promptly defeated by Mr. Madison, who, upon all points, save the Bank of the United States, preserved inviolate the great principles upon which the revolution of 1800 was founded, and of which his own report upon the alien and sedition laws was the exposition. For his departure, in that particular, (if a departure it was,) his reasons have been seen. It is not, at this time, my official duty to pass upon their sufficiency; and I am wholly unwilling to volunteer a denunciation of any opinion, deliberately formed, and upon high responsibility, by one of the most, if not the most, accomplished statesmen that our country has produced. However individuals might differ as to the correctness of his conclusion, all mankind must acquiesce in the purity of the motives which led to its adoption. The political condition of the country, at the close of the late war, in reference to old party distinctions, speculation as to the future, and the aspirations of individual ambition, accompanied, in many cases, by a sincere desire to promote the public good, produced occasional attempts during the administration that followed, to revive in a form less exceptionable, the doctrine which had already been so emphatically condemned by the people. They were, however, in a great degree, restrained, and kept down by the resistance of the remnant of the faithful, and the qualified opposition of Mr. Monroe.****
But if these attempts, said Mr. V. B., to revive the condemned heresies of former times, were not of themselves successful, they served the purpose of giving countenance to pretensions on the part of men now in power, which out-Herod Herod. The opening scenes of the present administration, have not only been the subjects of intense interest in their day, but will mark an interesting era in our future history. They will stand as a beacon to succeeding administrations, warning them of the point beyond which the people will never tolerate encroachment upon the great charter of their liberties. The present Executive, in his exposition of the constitutional powers of this Government, has gone far beyond the utmost latitude of construction heretofore claimed,† as if to give point to his extravagant pretensions-to demonstrate that the result of the last election was not only the restoration of the men of 1789, but of the principles of that day, we have seen a great portion of the obnoxious doctrine then contended for again broadly advanced in the assumption that it was within the “constitutional competency” of the Executive to have sent Ministers to the Congress of Panama, without the assent of the Senate; and, sir, to give a high finish to the picture, it is now strenuously contended, from a quarter in amity with the Executive, that the control of the rights and privileges of the Senators, on this floor, and their constituents, in a most essential particular, is a power inherent in the office of the Vice President of the United States. I have, sir, been brought up in opposition to that school of politics from which such principles are legitimate emanations. From my first acquaintance with public affairs to the present day, I have regarded it as a sacred duty to resist them; and I consider myself, on this occasion, as in the discharge of that duty. The grave matters of which I have spoken, with much more of what I might have spoken as daily passing before our eyes, are, as has been before observed, identical in principle with those which were so emphatically adjudged against by the people, in 1800.****** They are presented in a different and far more dangerous form: but they are, nevertheless, the same. The spirit of encroachment has, it is true, become more wary, but it is not a bit more honest. Heretofore the system was coercion; now it is seduction. Heretofore unconstitutional powers were exercised to force submission, now they are assumed to purchase golden opinions from the people with their own means. It is a great mistake, sir, to attribute the radical change in government, effected cotemporaneously with the election of Mr. Jefferson, either to excess of taxation, or practical oppression under the alien and sedition laws. Those doubtless produced great and just excitement: but it did not belong to their nature to produce such lasting consequences. Acts of individual oppression had been committed before, and have, in different degrees, been committed since. But, after having caused more or less of public excitement at the time, they have passed away with the occasion that produced them. Such is human nature now-such has it been in all ages of the world. The acts I have alluded to, highly exc[epti]onable as they undoubtedly were, could never have produced an un[yield]ing exclusion from the confidence of a maj[o]rity of the people, for more than a quarter of a century, of large masses of men distinguished for talent and private worth. No, sir, said he, the cause of that great and glorious struggle lies deeper-much deeper. It proceeded, not from the consequences of those acts, but from an opposition to the principle upon which they are founded-that principle was an alarming extension of the constructive powers of this government-it arose, as he had before said, from settled conviction in the minds of the people, that a deliberate plan had been formed by the men then in power, to change the Government, from its true republican form, to one, if not monarchical, at least too much inclined to that direction. It was the apprehension that they were about to be despoiled of the promised fruits of the revolution, that aroused and called into vigorous action that same great spirit by which the revolution itself was accomplished. It is to that cause only that results unknown to the politics of any other country, are to be attributed. The cause was at least adequate, if all the consequences have not been permanent. And what is the true character of the times upon which, in the course of events, and the providence of God, we have fallen? Most unpropitious, truly.
If the views in relation to the powers of this Government, avowed by the present Executive, and which lie at the foundation of the present administration, are the true doctrines of the Constitution, then was “the great political revolution of 1800 founded in gross error, if not palpable fraud upon the people.” Disguise the matter as you will, said he, “to this complexion must we come at last.” It was most manifest, he said, that whatever effect the events of 1797-8-9 and 1800 had had upon the federal men of that day, their consequences upon the principles that then prevailed, have not been as effectual as was hoped, and for a season believed.
“We have scotched the snake, not killed it,
She’ll close and be herself again.”
But he trusted the prediction would not be verified. She’ll not close again. The people will prevent it. He must indeed be a miserable judge of public sentiment, who cannot see in its daily indications that the same spirit which once before rescued the Constitution from the hands of its enemies, is at this moment fully roused. The excesses of the last three years have produced in this country changes of public opinion wholly without precedent. The [time, h]e trusted, was not far distant, when the interpolations which had been [att]empted upon the constitution, with the wretched sophisms by which they were supported, will be subjects of severe reprehension; nay, of derision, with the People, and when a great portion of the talents that have been employed in weaving the net, will need all its own ingenuity to escape its meshes. He hoped he had not been understood as supposing that all who had heretofore been ranked among the supporters of the high-toned doctrines he had condemned, must of consequence occupy the same station now. By no means. He would be ashamed of himself to be found the author of sentiments so contracted and illiberal. He knew too well that although, to a certain extent, names are things, they are not always the unerring evidence of the things they signify. The full experiment, in peace and in war, which we have now had of the respective operations and efficiency of the Federal and State Governments, ought to satisfy every dispassionate inquirer after the truth, of the fallacy of opinions once so extensively entertained. Those who thought so ought to abandon them, and all who are wise enough to be honest, will do so. It is of itself immaterial by what political appellation men have heretofore been called. The great question is, what are honestly their present sentiments upon those great points which have, from the beginning, divided the American People, and would, he feared, continue to do so to the end?
Mr. Van Buren said that, contrary to his first impression, he would vote in favor of the whole amendment proposed by the Senator from Connecticut. He would do so because it would be the most effectual manner in which he could assist in putting down what, with all respect for the opinions of his fellow Senators, he could not but regard as a monstrous construction of the constitution. The amendment proposed an appeal from the decision of the Vice President to the Senate. If he believed that the Vice President possessed the power in question by virtue of his office, he could not vote for so great an encroachment upon his constitutional rights as to subject their exercise to a supervision not provided for by the constitution. If, therefore, the amendments were adopted, he hoped we should hear no more of an inherent right, which you, sir, have, much to your credit, refused to usurp, and which we, as I cannot but think, to our discredit, are attempting to force upon you, nolens volens.
** It is within the recollection of the Senate, that one of the then surviving members of the Convention of 1787, (the late Mr. King,) toward the close of his long and useful public life, declared on the floor of the Senate, that the framers of the Constitution never contemplated the exercise of such powers by the Federal Government, as were now claimed for it upon the subject of internal improvements, and that had it been supposed that such powers were conferred, the Constitution never could have been ratified.
*** An anecdote is related of the late Gouverneur Morris, a conspicuous and efficient member of the convention, and great latitudinarian, which is entitled to credit, from its being so strikingly characteristic of the man. Being at the city of New York, a short time after the ratification by the requisite number of States was known, he was congratulated upon the successful termination of their labors in the establishment of a Constitution that would realize all the great objects of its framers. “That depends upon how it is construed,” was, at that early day, when no question of construction could by possibility have arisen, his pregnant reply.
**** Mr. Van Buren is by no means certain that, in this respect, he himself, has been altogether without fault. At the very first session he came into the Senate, the knowledge of the perpetual drain that the Cumberland Road was destined to prove upon the public treasury, unless some means were taken to prevent it, and a sincere desire to go at all times, as far as he could, consistently with the Constitution, to aid in the improvement, and promote the prosperity of the western country, had induced him, without full examination, to vote for a provision authorizing the collection of toll on the road. The affair of the Cumberland Road, in respect to its reference to the constitutional powers of this Government, is a matter entirely sui generis. It was authorized during the administration of Mr. Jefferson, grew out of the disposition of the Territory of the United States, and had the consent of the States through which it passed. he has never heard an explanation of the subject, (although it has been a matter of constant reference,) that has been satisfactory to his mind. All he can say, is, that if the question were again presented to him, he would vote against it, and that his regret for having done otherwise would be greater, had not Mr. Monroe, much to his credit, put his veto upon the bill, and were it not, as far as he knows, the only vote, in the course of a seven years’ service, which the most fastidious critic can torture into an inconsistency with the principles which Mr. V. B. professed to maintain, and in the justice of which he is every day more and more confirmed.
† Mr. Adams’s Ohio letter, during the canvass of 1824.
“The question of the power of Congress to authorize the making of internal improvements, is, in other words, a question whether the people of this Union, in forming their common social compact, as avowedly for the purpose of promoting their general welfare, have performed their work in a manner so ineffably stupid, as to deny themselves the means of bettering their own condition. I have too much respect for the intellect of my country to believe it. The first object of human association is the improvement of the condition of the associated. Roads and canals are among the most essential means of improving the condition of nations; and a people, which should deliberately, by the organization of its authorized power, deprive itself of the faculty of multiplying its own blessings, would be as wise as a Creator who should undertake to constitute a human being without a heart.”
“Whatsoever is of domestic concernment, unconnected with the other members of the Union, or with foreign lands, belongs exclusively to the administration of the State governments. Whatsoever directly involves the rights and interests of the federative fraternity, or of foreign powers, is of the resort of this general government. The duties of both are obvious in the general principles, though sometimes perplexed with difficulties in the detail.”
president's first message to congress.
“Upon this first occasion of addressing the Legislature of the Union, with which I have been honored, in presenting to their view the execution, so far as it has been effected, of the measures sanctioned by them for promoting the internal improvement of our country, I cannot close the communication without recommending to their calm and persevering consideration, the general principle in a more enlarged extent. The great object of the institution of civil government is the improvement of the condition of those who are parties to the social compact. And no government, in whatever form constituted, can accomplish the lawful ends of its institution, but in proportion as it improves the condition of those over whom it is established. Roads and canals, by multiplying and facilitating the communications and intercourse between distant regions and multitudes of men, are among the most important means of improvement. But moral, political, intellectual improvement, are duties assigned, by the Author of our existence, to social, no less than to individual man. For the fulfilment of those duties, governments are invested with power; and to the attainment of the end, the progressive improvement of the condition of the governed, the exercise of delegated powers is a duty as sacred and indispensable, as the usurpation of powers not granted is criminal and odious.”
The principle of constitutional construction contained in the Ohio letter, is distinctly repeated in the first message. In both, the powers of the federal government are referred, not to the enumeration and specification of them made with so much care by those who framed the Constitution, but to the great purposes for which governments are instituted, and the duties assigned by the Author of our existence, to social man; subjecting, of course, the questions as to what those “great purposes” and “duties,” and the consequent powers of the federal government are, to no other restraints than the discretion of those who hold the reins.
Is it not most preposterous, with such expositions of the Constitution, to talk of this as a government of specific and limited powers. Would Alexander Hamilton, who was certainly among the most high-toned advocates of the constructive powers of this government, not have blushed to have had such doctrines attributed to him? His disclaimer of the authority now claimed for the federal government over the subject of internal improvements, is upon record, and there is in existence other and still more ample evidence of his dissent.
***** Extract from the speech of James A. Bayard, on the Judiciary Bill, in 1802:
“We were next told of the parties which have existed, divided by the opposite views of promoting executive power, and guarding the rights of the people. The gentleman did not tell us in plain language, but he wished it to be understood that he and his friends were the guardians of the people’s rights, and that we were the advocates of executive power.
I know that this is the distinction of a party which some gentlemen have been anxious to establish: but it is not the ground on which we divide. I am satisfied with the constitutional powers of the Executive, and never wished nor attempted to increase them; and I do not believe that gentlemen on the other side of the house ever had a serious apprehension of danger from an increase of executive authority. No, sir, our views as to the powers which ought to belong to the General and State Governments, are the true sources of our divisions. I co-operate with the party to which I am attached, because I believe their true object and end is an honest and efficient support of the General Government in the exercise of the legitimate powers of the Constitution.
I pray to God I may be mistaken in the opinion I entertain as to the designs of gentlemen to whom I am opposed. Those designs I believe hostile to the powers of this Government. State pride extinguishes national sentiment. Whatever is taken from this Government is given to the States.”
Better authority, as to the old lines of party division, could not on one side be referred to, than that of Mr. Bayard. Although a zealous partisan, he did, not when his country was at war, forget that he was an American citizen. His noble bearing at that perilous crisis, broke down the partition wall between him and his old opponents; and there is every reason to believe, that if the councils of the country had been favored with the continuance of his splendid talents, to the present period, the exemplary and efficient conduct of the States, the gradual and permanent improvements of their systems, together with the constantly accumulating evidence of the proneness of this Government to extend and abuse its powers, would have made the same impression on his mind, that they have on the minds of many who once thought as he did.
Editorial Note: Printed as Substance of Mr. Van Buren's Observations in the Senate of the United States, on Mr Foot's amendment to the rules of the Senate, by which it was proposed to give the Vice President to call to order for works spoken in debate (Washington: N.p., ).