On March 28, 1834, the Whig-controlled Senate voted 26-20 to censure President Andrew Jackson. This act was entirely without precedent in U.S. history. The final censure resolution, the last in a series of draft accusations penned by Senator Henry Clay, reads as follows: “Resolved that the President in the late Executive proceedings in relation to the public revenue, has assumed upon himself authority and power not confer’d by the Constitution and laws but in derogation of both”:
According to Jackson’s friends, it was the censure resolution that was in derogation of the Constitution. If Jackson’s actions were so egregious, surely the censuring Senators would support an impeachment effort? Yet all 26 of them had prejudged Jackson’s guilt in the event a trial actually occurred. They had set themselves up as accusers, judge, and jury. As everyone knew, though, it was precisely because impeachment was not a political possibility that the Senate had opted to censure Jackson. Democrats controlled the House and made up more than one-third of the Senate, so impeachment was a non-starter. This wasn’t a very principled answer to the prejudgment charge, but it adequately accounted for reality.
Jacksonians also pointed out that censure was nowhere mentioned in the Constitution. Whigs conceded that Congress could only exercise those powers delegated to it, but they framed the matter differently. Clay’s censure resolution wasn’t legislation—the Senate was merely issuing its institutional opinion on a matter of high political and constitutional import. Exactly where was it prohibited from doing that?
What had Jackson done “in the late Executive proceedings in relation to the public revenue” to deserve such thundering obloquy? The immediate reason was Jackson’s refusal to provide sufficient documentation related to his premature asphyxiation of the Second Bank of the United States. But the real problem, of course, was the strangling itself—Jackson had ordered his Secretary of the Treasury to remove public deposits from the Bank in 1833, effectively rescinding its legal incorporation (the Bank’s charter was set to expire in 1836). Clay and company were also horrified that Jackson had demanded the resignations of two Treasury Secretaries for no other reason than that they refused to execute a policy Whigs believed to be “in derogation of” an act of Congress.
The various resolutions offered by Clay in the course of finding the right language are affixed to a larger sheet of paper to create a sort of Senatorial condemnation collage. The prototype was less oblique in its reprehension than the final product. Here’s Clay’s original two-part censure resolution:
“1st. Resolved that, by dismissing the late Secretary of the Treasury, because he would not, contrary to his sense of his own duty, remove the money of the U. States in deposite with the Bank of the U. States, and its branches, in conformity with the President’s opinion; and by appointing his successor to effect such removal, which has been done, the President has assumed the exercise of a power over the Treasury of the U. States not granted to him by the Constitution and Laws, and dangerous to the liberties of the People.
2d. Resolved that the reasons assigned by the Secretary of the Treasury [Roger Taney], for the removal of the money of the U. States, deposited in the Bank of the U. States and its branches, communicated to Congress on the third day of December 1833, are unsatisfactory and insufficient.”
Here’s the amended version (sorry for the poor quality):
“Resolved that in taking upon himself the responsibility of removing the deposites of the public money from the Bank of the U. States, the President of the U. S. has assumed the exercise of a power over the Treasury of the U. States, not provided to him by the Constitution and laws, and dangerous to the liberties of the people.”
Missing in the final censure resolution was any justification for the view that Jackson had exercised power not granted to him by the Constitution and laws and the assertion that his actions were “dangerous to the liberties of the people.” New in the voted-on version was the allegation that Jackson had violated the Constitution and laws of the United States in addition to exercising power not granted by them.
This is what the reverse side looks like:
President Jackson responded in equally unprecedented fashion: he formally protested the Senate’s censure resolution. In yet another historical first, the Senate simply refused to receive the president’s message and to print it in its Journal.
Thomas Hart Benton, who’d once dueled Jackson in Nashville, spearheaded a movement in the Senate to have the censure resolution expunged from the Senate Journal. (You guessed it—nothing like this had ever happened, either.) Democrats soon had enough votes for expungement, and the deed was done on January 16, 1837. If censure was aconstitutional, erasing any record of it was arguably unconstitutional—according to Article I, Section 5, “[e]ach House shall keep a Journal of its Proceedings, and from time to time publish the same . . . and the Yeas and Nays of the Members of either House on any question shall . . . be entered on the Journal.” I suppose Jacksonians were content to bootstrap on their foes’ supposed iniquities when it served to annul the evildoing.