The First Veto

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Brian Balogh: Welcome to Backstory, the show that explains the history behind today’s headlines. I’m Brian Balogh.

Joanne Freeman: And I’m Joanne Freeman. If you’re new to the podcast, we’re all historians, and along with Ed Ayers and Nathan Connolly, each week we explore a different aspect of American History.

Brian Balogh: I’ll bet you didn’t know that exactly 227 years ago on April 5, 1792, George Washington issued the first veto in American history. Washington might’ve been the first president to use a veto, but he certainly wasn’t the last. Later, we’ll learn which president used the power more than any other, and we’ll discuss President Trump, who issued his first veto a few weeks ago. So today on the show we explore presidential vetoes throughout American history.

Joanne Freeman: Today we think of the President’s ability to veto legislation as part of a kind of perpetual power play, a tug of war between the executive and legislative branches. But during his presidency, which of course was the first presidency, George Washington wasn’t exactly chomping at the bit to veto legislation. That is, until a controversial bill came across his desk.

Lindsay C.: Not only was the bill messy, it was very unclear and struck people as sort of secretive. It seemed to favor the Northern states a little bit more, and so that was obviously very problematic.

Joanne Freeman: That’s historian Lindsay Chervinsky describing the first vetoed piece of legislation in American history. The bill proposed a formula to calculate how many House Representatives were to be assigned to each state, but before Washington passed judgment on the bill, he consulted with his Cabinet.

Lindsay C.: Secretary of the Treasury, Alexander Hamilton, and Secretary of War, Henry Knox favored the bill. And Secretary of State, Thomas Jefferson, and Attorney General, Edmund Randolph opposed the bill. So Washington very interestingly asked them all for written opinions about what he should do in the first week of April before issuing the veto. And I say interestingly because he had convened a Cabinet meeting by this point. The first Cabinet meeting took place on November 26, 1791. So there was precedent for meeting in person, and instead, he decided to request written opinions even though they were all in town. Which I think says a lot about how he wanted to contemplate their decisions slowly and make a decision in his own time, but also if he was going to issue a veto, that was going to be a huge precedent that he was setting. Maybe, I mean we don’t know because he didn’t write this down, he often didn’t write down his thought process, but maybe he wanted to make sure he had written evidence of support for a veto if he decided to go that route.

Joanne Freeman: Which would be a very savvy political thing to do if you’re George Washington.

Lindsay C.: Yes, yes, and he never published any of those types of opinions or reports, but I do think it was definitely the back of his mind. He was way more politically savvy than people give him credit for.

Joanne Freeman: Jefferson really seized hold of this. What’s your sense of why he grabbed hold of this as being so important?

Lindsay C.: Well I think there were a couple of reasons. I think that he felt that the Constitution actually was much more explicit than people were giving it credit for, and so he felt that the Constitution was very explicit and that you needed to have this strict reading of the Constitution. So I think it’s part of a broader, sort of ideological view of the way the Constitution needs to be read. I think part of it is he also felt like it really advantaged states like Massachusetts and Vermont, and some states that-

Joanne Freeman: Mm-hmm (affirmative). That was gonna be my question, is he’s a Southerner, so some part of him was responding like a Southerner.

Lindsay C.: Absolutely. Then I think he also realized that Washington was uncomfortable with the bill, but he was very worried about appearing to favor the Southern states, especially Virginia. He didn’t want to appear to be giving any sort of favoritism. So Washington needed all of the ammunition he could possibly get to come up with a really solid reason to use the veto. Lastly, I think that Jefferson recognized the importance of Washington’s precedent, and the veto was a really important part of the executive branch, and that at some point it needed to be used before Washington left office. By this point in 1792, Jefferson is already thinking about when he’s going to retire, and he doesn’t end up doing so for awhile. But he might have been thinking in his mind, “If I’m gonna leave office soon, I want to make sure he uses it before I leave.” Of course I’m speculating on that because he didn’t write that down, but if we look at the timeline of when he starts talking about retirement, it’s in 1792. So that might have also been at the back of his mind.

Joanne Freeman: You know, as you were just suggesting there, one of the really interesting things about this entire period, but particularly this first term, is that almost everything Washington does sets a precedent, because there is no such thing as a president until there is one in the Constitution based on this new Constitution that’s gone into effect. So he’s constantly setting precedents, and so in that sense, and as you just suggested about Jefferson, there’s a constitutional interpretive component here, where people understand that it isn’t just about this one bill, but it’s about something much broader, about the Constitution. And it’s also about something much broader, meaning that some kind of precedent has to be set, and to me, that’s really intriguing, this idea that if he doesn’t do it, other presidents who follow him might be unwilling to do it. I assume because if the great Washington did not use the veto, who else has a right to use a veto? So there’s a reason for it that actually isn’t really related to the bill itself.

Lindsay C.: Exactly, exactly. I always stress to students and to other people when I’m talking about this period that the Constitution itself is actually pretty brief, and so few of the details are actually fleshed out, especially in Article II, which deals with the presidency. And all of those fuzzy details about what day-to-day governing would look like, Washington really had to figure out, and he knew how much pressure was on every single decision, and at one point mentioned to a friend that he felt before going to office like he was a prisoner going to the site of execution, because there was just so much pressure. And if he failed, the government would fail. I really believe that, and I think that he really believed it. So it’s not just a matter of trying to make the best decision, it’s making the best decision that’s going to guide every single person that comes after you.

Joanne Freeman: And in that same context, a veto, a presidential veto, is a dramatic act. It’s a blunt assertion of executive power.

Lindsay C.: Yes, absolutely. You know, even the concept of, “How do you go about doing that,” was unknown. So once he decides that, “Okay. I think I favor this, but I’m really worried about how it’s going to look,” he asks Jefferson and Randolph to go meet with Madison. What is interesting, because at this point he isn’t as close with Madison as he had been in 1789 and 1790.

Joanne Freeman: For our listeners, Madison is in The House.

Lindsay C.: Yes. James Madison is in The House. He’s sort of the unspoken leader of what is becoming this nascent opposition movement, and he and Washington had really sort of broken their relationship on a lot of different issues where they really felt differently about much of Hamilton’s legislation. So Madison and Washington really weren’t as close, and yet he asked Jefferson and Randolph to go meet with Madison, and if Madison agreed with their interpretation, he said, “I’m willing to do the veto. Can you please work with Madison to draw up basically an article of veto?” Because it had never been done before, so he didn’t even know what he was supposed to say. He didn’t even know how he was supposed to veto this bill, and so they had to come up with the statement to deliver to Congress from scratch.

Joanne Freeman: So what does Washington do? How does he make that final decision? What do you know about the end result of this first veto?

Lindsay C.: Jefferson and Randolph go to Madison. Madison obviously agrees with them. I’m not sure that there was really any doubt in any of their minds that that was going to happen, and they draw up this veto document. Washington sends it to Congress. In the veto document he explains why he has a problem with this bill, what the issues are, and based on those recommendations, Congress passes new legislation on April 14. So less than 10 days later, they pass new legislation, which is crazy if you think about the speed of how Congress usually works. They passed the new bill, and by and large it seems like there wasn’t much public blowback about it because there had been so much conflict initially about how the first census should be done. So there was so many people that were already willing to support the bill, and then once he came out and said, “I really think this is how it should be done,” they immediately adopted those recommendations and just moved forward.

Joanne Freeman: But you know, it’s striking, because a presidential veto in a sense is a dramatic act, right? It’s an assertion of power, a really clear assertion of power. And it sounds like in the case of this first one, that wasn’t an enormous part of what was going on in the discussion.

Lindsay C.: That’s right, and I think part of that is how the veto was initially conceived of, and a lot of that goes back to how they initially conceived of the different branches. So I think there was a lot of concern that the legislature was going to be way too powerful. That was certainly Madison’s biggest concern, and so the veto was not so much given to assert presidential authority so much as to protect the independence of the executive branch and to protect the president from the legislature. So the idea was not so much that it was going to claim land or jurisdiction or power, but to keep the legislature off of the president’s front grass so to speak.

Lindsay C.: I think that they were still thinking of the veto in that context, and so in this sense, it didn’t seem like this huge assertion of presidential authority, it just seemed like Washington was saying, “Hey. I don’t think you did this right. Try again.” Congress was very split on this bill. It barely passed. So when Washington vetoed it, he wasn’t saying, “You guys can’t do this.” He was just saying, “I think this is a better way that’s more constitutional and more fair,” and because so many people already thought that, it was pretty easy to use Washington’s authority to get enough other people to hop over the fence and agree with them, and so they were able to pass the new bill really easily.

Joanne Freeman: So it wasn’t the equivalent of a fist on the table, right? Washington wasn’t banging his fist on the table and saying, “No. You shall not do that.” But really, as you’re suggestion, he was acting as a check and saying, “I don’t know if this is fair. Do it again.”

Lindsay C.: Yeah. It was more like red pen margin edits than an F, a failing of an exam. It’s more like, “Here’s some suggestions to make it better. Please redo and turn in again.”

Joanne Freeman: Beyond the moment when the decision is made, do you think there’s a broader significance for this veto? I mean is it setting broader precedents that play out in other ways down the road?

Lindsay C.: I think so. I think there are a couple. I mean the fact that a veto was used at all, I think Jefferson’s concern about had Washington not used it, I think that was very, very smart. And I think that there are certain ceremonial aspects of the government that have evolved and changed a lot in the last 200 so years, and it’s possible that the veto could have become one of those little things that we now thing is quaint if Washington hadn’t used it. So I think putting it on the table as an option was really, really important.

Joanne Freeman: So in a sense when you look at this moment and when you look at this particular period in government generally, I think part of what we’re saying here is it’s really easy to underestimate the significance of some of what’s going on in this period because things look less institutionalized, because they look more, in a sense, informal and in formation. Here’s an example of something that ends up being an important precedent, but it’s very easy to overlook it because it just seems like in this sort of weird, fluid period, something that happened.

Lindsay C.: Actually it’s one of the things that I find the most fascinating about the early republic, is that when we’re looking at politics and we’re looking at the government, because it was so small and so much had yet to be decided, individuals had such tremendous impact, in a way that I don’t think has ever really been rivaled.

Joanne Freeman: Lindsay Chervinsky is a historian at The White House Historical Association.