need not coincide, so that a dispute between those authorities, although turning on the meaning of the Constitution, may be incapable of being settled by any legal proceeding. This causes no great confusion, because the decision, whether of the political or the judicial authority, is conclusive so far as regards the particular controversy or matter passed upon.
The above is the doctrine now generally accepted in America. But at one time the Presidents claimed the much wider right of being, except in questions of pure private law, generally and prima facie entitled to interpret the Constitution for themselves, and to act on their own interpretation, even when it ran counter to that delivered by the Supreme court. Thus Jefferson denounced the doctrine laid down in the famous judgment of Chief-Justice Marshall in the case of Marhury v. Madison;[1] thus Jackson insisted that the Supreme court was mistaken in holding that Congress had power to charter the United States bank, and that he, knowing better than the court did what the Constitution meant to permit, was entitled to attack the bank as an illegal institution, and to veto a bill proposing to re-charter it.[2] Majorities in Congress have more than once claimed for themselves the same independence. But of late years both the executive and the legislature have practically receded from the position which the language formerly used seemed to assert; while, on the other hand, the judiciary, by their tendency during the whole course of their history to support every exercise of power which they did not deem plainly unconstitutional, have left a wide field to those authorities. If the latter have not used this freedom to stretch the Constitution even more than they have done, it is
- ↑ As the court dismissed upon another point in the case the proceedings against Mr. Secretary Madison, the question whether Marshall was right did not arise in a practical form.
- ↑ There was, however, nothing unconstitutional in the course which Jackson actually took in withdrawing the deposits from the United States Bank and in vetoing the bill for a re-charter. It is still generally admitted that a President has the right in considering a measure coming to him from Congress to form his own judgment, not only as to its expediency but as to its conformability to the Constitution. Judge Cooley observes to me: "If Jackson sincerely believed that the Constitution had been violated in the first and second charter, he was certainly not bound, when a third was proposed, to surrender his opinion in obedience to precedent. The question of approving a new charter was political; and he was entirely within the line of duty in refusing it for any reasons which, to his own mind, seemed sufficient."
