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21 Const. Comment. 485 (2004)
Resolving Political Questions into Judicial Questions: Tocqueville's Thesis Revisited

handle is hein.journals/ccum21 and id is 493 raw text is: RESOLVING POLITICAL QUESTIONS INTO JUDICIAL QUESTIONS: TOCQUEVILLE'S THESIS REVISITED Mark A. Graber* Americans throughout the Jacksonian era bitterly disputed the proper use of the President's veto power.Whigs insisted that Democratic Presidents were abusing an authority to reject legis- lation originally intended to be confined largely to unconstitu- tional measures. The powers of Congress are paralyzed, Henry Clay complained, by frequent and an extraordinary exercise of the executive veto, not anticipated by the founders of the consti- tution, and not practiced by any of the predecessors of Andrew Jackson.1 Democrats insisted Jacksonian Presidents were acting well within their Article II powers when preventing from becom- ing law bills incorporating a new national bank and funding in- ternal improvements. The veto power, future president James Buchanan informed Congress, is a mere power to arrest hasty and inconsiderate changes, until the voice of the people, who are alike the masters of Senators, Representatives and President, shall be heard.2 President Jackson was censured and President John Tyler nearly impeached in part over controversies arising out of their exercise of the veto.3 The federal judiciary was the only branch of the national government whose members refrained from expressing official opinions on the proper constitutional use of the veto power. Many Supreme Court justices had strong personal opinions on that issue. Chief Justice Taney while Attorney General helped * Professor of Government at the University of Maryland and Professor of Law at the University of Maryland School of Law. A.B. Dartmouth College 1978; J.D. Co- lumbia Law School 1981; PhD Yale University 1988. Much thanks to Howard Gillman, Rogers Smith, Sandy Levinson and Jim Chen. 1. 16 REG. DEB. 59 (1833). 2. CONG. GLOBE, 27th Cong., 2d Sess. App. 141 (1842). 3. These controversies are discussed at length in DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: DEMOCRATS AND WHIGS, 1829-1861 185-201 (2005); Gerard N. Magliocca, Veto! The Jacksonian Revolution in Constitutional Law, 78 NEB L. REV. 205 (1999).