A Constitutional History of the United States Chapter XXXIII - Georgia and States' Rights. South Carolina Resorts to Nullification. The Theories of John C. Calhoun. byMcLaughlin, Andrew C.
During the administration of John Quincy Adams, whose path was not
strewn with roses, a serious difficulty arose with the state of Georgia, which
claimed, in accord with a treaty entered into in 1825, full jurisdiction and
authority over certain Indian lands. Before the time set by the treaty for the
surrender of the lands, the state took steps to survey them; and the Indians
asserted that the treaty had not received the consent of the tribe. The
national government objected to the action of the state, but Georgia wished no
interference from the President and did not hesitate to announce her rights in
the boldest fashion. It is unnecessary to enter here upon the tangled skein of
the controversy. The salient fact is Georgia's insistence upon her rights and
the declarations of her intention to defend them. "The Executive of Georgia",
said the Governor in a letter to the Secretary of War, "has no authority in the
civil war with which the State is menaced to strike the first blow, nor has it
the inclination to provoke it; that is left to those who have both the
inclination and the authority, and who profess to love the Union best. The
Legislature will, on their first meeting, decide what, in this respect, the
rights and interests of the State demand. In the meantime, the right to make
the survey is asserted, and the reference of the treaty to Congress, for
revision, protested against without any qualification." [1]
The legislature supported the Governor. But President Adams was not
content with the treaty to which the Indians strongly objected, and a new
treaty was entered into (January, 1826). Georgia insisted upon her rights and
the validity of the first treaty. The legislature claimed the soil and
jurisdiction of all territory within the "present chartered and conventional
limits" of the state, and admitted the right of the general government only to
regulate commerce with the Indian tribes. It announced the abrogation of the
earlier treaty, in so far as it devested Georgia of any right acquired under
it, to be illegal and unconstitutional, and it declared the protest of the
President against any measure of the state in the exercise of an "essential
part of her sovereignty" to be an instance of dictation and of unwarranted
federal supremacy.[2] About the same time the Governor declared that
the Supreme Court was not made the arbiter in controversies involving rights of
sovereignty between the states and the United States. There was danger of civil
war. The President was determined to prevent the survey of the lands and he
warned Troup that the government would, if need be, use force; the Governor,
not intimidated by such pronouncements, called out the state militia. Congress
was not willing to support the President. A few months later (November, 1827) a
treaty was entered into for the final surrender of the Creeks' lands to the
state.
Even more difficult questions arose in connection with Georgia's demand
for the lands of the Cherokees. The tribe was far removed from simple savagery.
In 1827 they adopted a constitution asserting that the Cherokees constituted
one of the sovereign and independent nations of the earth. To Georgia this was
intolerable, and the legislature declared all white persons in the Cherokee
territory to be subject to the laws of the state, and after June 1, 1830, all
laws of the Cherokee nation were to be void.[3] A Cherokee Indian
named Tassel [4] was convicted of murder in a Georgia court. But
Georgia defied a writ of error allowed by the Chief Justice of the federal
Court — a flagrant insult to the sovereignty of Georgia. The legislature
authorized the Governor "with all the force and means, placed at his command,
... to resist and repel, any and every invasion, from whatever quarter, upon
the administration of the criminal laws of this State." It declared that the
state of Georgia "will never so far compromise her sovereignty as an
independent State, as to become a party to the case sought to be made before
the Supreme Court of the United States, by the writ in question." Tassel was
promptly and effectively executed.
But other steps were already being taken to have the question of
Georgia's jurisdiction determined. On behalf of the Cherokees, an injunction
was asked for to restrain the state from executing "certain laws of that State,
which, as is alleged, go directly to annihilate the Cherokees as a political
society, and to seize, for the use of Georgia, the lands of the nation which
have been assured to them by the United States in solemn treaties repeatedly
made and still in force." The Supreme Court "after mature deliberation"
declared that "an Indian tribe or nation within the United States is not a
foreign state in the sense of the Constitution, and cannot maintain an action
in the courts of the United States." [5]
Another opportunity arose for the Court to render an opinion, for
Marshall to express himself clearly, and for Georgia to defy the judicial
authority. Several missionaries, among them one Samuel Worcester, were haled
before a state court and charged with violating a law of the state forbidding
whites to reside within the Cherokee limits without a license. They were found
guilty and sentenced to four years of imprisonment at hard labor. Worcester
appealed to the United States Supreme Court; Georgia denied the Court's
jurisdiction and relied upon her own sovereign rights. Marshall rendered a
forceful opinion, pronouncing the Georgia law void and declaring the judgment
of the state court should be reversed and annulled.[6] Georgia
smiled in derision and Worcester remained in prison. The next year, having
indicated their willingness to acknowledge the power of the state, he and his
companion in trouble were pardoned by the Governor.[7] All this is
of interest in constitutional history because it illustrates the difficulty of
handling the Indian question and gives an idea of difficulties inevitably
confronting the government of a nation rapidly extending its settlements. It is
of course chiefly of importance because of Georgia's attitude of defiance and
her successful opposition to the government. Only a few of her protests,
resolutions, and exclamations have been quoted here, but enough to show the
general facts. Of interest also is the calm manner in which the Chief Justice
and his colleagues on the federal bench analyzed the problem and announced the
law. That Georgia could not be brought to terms by judicial announcement of her
iniquities, and that the decision of the Court would never be carried out did
not deter the justices; but to think of their position as undignified,
fruitless, and vain is a mistake. In fact, there is something impressive and
compelling in the quiet dignity with which the Court proclaimed its opinion.
Jackson is said to have remarked, "Well, John Marshall has made his decision,
now let him enforce it." Possibly Jackson said this, and said it with a sneer;
but the Court did not ask the President to enforce its decision or order its
own officials to do anything of the kind. The President in a few months was
face to face with the nullifiers in South Carolina, and he then did not shrink
or falter in the performance of what he believed to be his duty.
Anyone studying the fact and the influence of sectionalism in American
history will hesitate to emphasize the feeling or the peculiar interests of any
one section as compared with others; but he cannot forget the southern sense of
a common southern cause which came in the course of time to produce secession.
This sentiment grew after slavery had furnished plainly a common ground for the
south to stand upon, and this growth took place more conspicuously after 1835
than at any earlier day. And still, as we see a degree of uniformity in
opposition to the tariff, after about 1824, and see also the pronouncement that
southern interests were the victims of northern aggression, we get an
impression of a coming trouble based on a feeling of a real, though perhaps
still vague, sectional solidarity. The doctrines of states' rights and state
sovereignty have already been often mentioned in this work; state sovereignty
is to be the special topic of this chapter; but as a matter of fact the
doctrine was a weapon of defense, not so much for protecting the peculiar
interests of a particular state, as for defending a section and a sectional
economic interest. Therein lay the danger to the union — sectional
diversity and sectional sentiment, aided, if need be, by constitutional
argument which was based upon the individuality of the states.
No one more clearly than Calhoun, who became the high priest of state
sovereignty, saw the menace of diversity based upon rivalry of economic
interests; and he saw this before he put forth his theory of state sovereignty
and before he looked out upon the union as only a combination of states each
clothed with the full panoply of power. Writing in 1827 concerning a proposed
gathering of manufacturing interests at Harrisburg, he pointed to the
disruptive influence of such movements and naturally descried an intention to
promote sectional desires and ambitions: "thus the dangerous example is set of
seperate [sic] representation, and association of great Geographical
interests to promote their prosperity at the expense of other interests,
unrepresented, and fixed in another section, which, of all measures that can be
conceived, is calculated to give the greatest opportunity to art, and
corruption, and to make two of one nation." [8] To Calhoun the
thought of Clay, that the tariff was national, helpful to all, planter, farmer,
and manufacturer alike, now made no appeal; he saw dangerous sectional ambition
thrusting itself forward at the expense of a weaker region.
The third decade was not far advanced when South Carolina showed signs
of uneasiness and, indeed, of restlessness and resentment. To what was this
due? It was largely due no doubt to economic causes, but those causes were not
simple or easily remedied. There is evidence that the coastal or tidewater
region of the old south had long been declining in economic welfare. Loud
laments had issued from the eastern plantation region of Virginia. Wasteful
methods of agriculture and the washing away of the soil were having their
effect. The cotton-raising area now extended into the interior of South
Carolina, and soon after the war of 1812 planters had moved to the rich and
alluring lands of the lower Mississippi basin. In the first quarter of the
nineteenth century cotton had become of immense importance. In 1801 South
Carolina had raised twenty million pounds; in 1821 her crop was fifty million
pounds. At the beginning of the third decade, the southwest, including
Tennessee, had become a serious competitor; and when the fourth decade came,
that region was actually producing more cotton than the old
south.[9] The price of cotton fell ominously. "In 1816 the average
price of middling uplands in New York was nearly thirty cents, and South
Carolina's leaders favored the tariff; in 1820 it was seventeen cents, and the
south saw in the protective system a grievance; in 1824 it was fourteen and
three-quarter cents, and the South-Carolinians denounced the tariff as
unconstitutional. When the woollens bill was agitated in 1827, cotton had
fallen to but little more than nine cents, and the radicals of the section
threatened civil war." [10]
The south was plainly falling behind the north in population. New
England's population was not increasing rapidly, but New England was shifting
her emphasis from commerce to manufacturing and was no longer in a complaining
mood. Between 1820 and 1830 the population of New York was increased by
545,796, while the increase in the whole of the old south was less than
400,000. In that decade over 1,100,000 persons were added to the population of
the northern states, not including the new states west of the mountains, and
that was over three times as much as the total growth of all the old states
south of the Pennsylvania line. In 1790 South Carolina contained 107,094
slaves; forty years later, 315,401. Between 1820 and 1830 the slave population
of the state increased 56,926 and the white population about 22,000. To the
population of Pennsylvania in the same decade were added about 300,000 persons
— more than three-fourths as many as the total increase of the old south,
including both slave and free.[11]
It is difficult to say just how much the south or the whole of the old
slaveholding region was suffering from industrial depression. Measurements are,
however, not necessary; the general condition is plain enough: while the north
was moving ahead and the west was growing with astonishing rapidity, the older
south was falling behind. For us, the important fact is that the feeling of
irritation and the sense of being treated unjustly resulted in the announcement
of constitutional theories and the elaboration of intricate political and
philosophic doctrines, which developed and continued to be of immense influence
until those supporting them were crushed by civil war.
We cannot, naturally, discover to what extent the decline of the old
south's prosperity was due to the protective tariff. The decline had been going
on for years and there was more than one influence at work in the older
tidewater region. But in the third decade of the century the value of the
average annual exports of the three staple products of the south —
tobacco, cotton, and rice — largely exceeded in value all other domestic
exports.[12] And one cannot wonder at southern antagonism to a
protective system under which planters did the exporting, paid the import duty,
and bought goods of northern make at a price artificially maintained by the
tariff. But the general situation was complex; various influences were at work
— slave labor, soil erosion, the competition of the new west, immigration
of foreigners into the northern states, the extension of factory production. As
we have already seen, strict construction of the Constitution had displayed
itself in opposition to internal improvements, an opposition in some instances
directed rather against the legal authority than against the desirability of
proposed measures; the southerners were now, however, opposed to the
expenditure of money for the development of industry in which they had no part;
they were opposed to both tariff and internal improvements — the twin
brothers of Clay's "American System" which would bring the farm to the factory
and the factory to the farm.[13]
South Carolina was now entering upon a new experience; for, from the
very beginning of the government the state had not wearied in her sympathy for
national principles. In all the earlier years most of the other states at one
time or another had broken forth in expostulation and in announcements of
constitutional principles of states' rights. But South Carolina's page was
clean and clear.[14] In 1817 Calhoun defended the "bonus bill",
which proposed using the bonus and subsequent dividends received from the Bank
for internal improvements: "We are great, and rapidly — I was about to say
fearfully — growing.... We are under the most imperious obligation to
counteract every tendency to disunion.... Those who understand the human heart
best know how powerfully distance tends to break the sympathies of our
nature.... Let us, then, bind the republic together with a perfect system of
roads and canals. Let us conquer space.... I am no advocate for refined
arguments on the constitution. The instrument was not intended as a thesis for
the logician to exercise his ingenuity on." [15]
In 1820 when certain resolutions were introduced into the house of
representatives of South Carolina, a committee, to which the resolutions were
referred, announced opposition to the tariff, but objected strongly to the
tendency, becoming too common, of arraying the states as distinct sovereignties
in opposition to the national authority, and recommended that the house "adhere
to those wise, liberal and magnanimous principles by which this state has been
hitherto so proudly distinguished." [16] The next year George
McDuffie, who afterwards played a conspicuous role as an advocate of state
sovereignty, published a pamphlet in which he declared that the "general
government is as truly the government of the whole people, as a state
government is of part of the people. Its Constitution, in the language of its
preamble, was ordained and established by 'the People of the United
States.'" [17] James Hamilton, in an introductory statement to
the pamphlet, proclaimed the truths unfolded by McDuffie to be in their nature
essentially imperishable. A few years later both of these men were defending
extreme antinational doctrine.[18]
Discontent with the policies of internal improvements and protection was
disturbing South Carolina in 1824 and 1825, but ill feeling had not as yet run
to ominous heights. The Governor, in a message to the legislature, lamented the
extent to which the federal judiciary and Congress had gone toward the
establishment of a great consolidated government; but the house announced that
"Every citizen of these United States owes a double allegiance; namely to the
government of the United States, and to the government of the individual State
to which he may belong." The resolutions of the house declared that "the People
have conferred no power upon their State Legislature to impugn the Acts of the
Federal Government or the decisions of the Supreme Court of the United States",
and that "any exercise of such a power by this state would be an act of
usurpation." [19]
In the summer of 1828 the state was seething with discontent. Certain
radicals had reached a perilous stage of exclamatory resentment against the
tariff. But then, as at a later time, not all were ready to move forward and
resort to force or to secession. There was then, and there long continued to
be, a strong and able union party, though comparatively few of the
conservatives failed to condemn the tariff. The debates, the public speeches,
the articles in the press, went merrily onward; and presumably the agitator,
sure of himself and zealous in his cause, had at that time, as probably he must
always have, a decided advantage over the advocate of calmness, delay, and
careful weighing of consequences. An appeal to calm reason is not well-fitted
to fire the heart. These differences of opinion in the state, the fierce
disputes between the radical elements and the union party, are an interesting
story but must be passed over here with but a single word: when we speak of
South Carolina's opinions and announcements, we need to remember that a
substantial minority was not willing to proclaim thoroughgoing state
sovereignty and to accept its inevitable results.
In the midsummer of 1828, Calhoun, though strongly feeling the injustice
of the tariff, was not quite ready to give utterance to extreme
doctrines.[20] He was then Vice-President, was a candidate in the
election of that year, and still entertained the ambition of becoming
president. It is unnecessary to ascribe to him selfish anxiety about his own
future, but he was for the moment holding back. Sometime during that summer or
autumn he determined to take a hand, draw up a strong attack upon the injustice
of the tariff, and indicate briefly the state's right to protect her interests.
His uncertainty had disappeared. As Jefferson, when Vice-President, had drafted
the Kentucky resolutions and kept his authorship a secret, so Calhoun's
authorship of the South Carolina "Exposition" of 1828 was not then
divulged.
We need not examine this paper in detail; it foreshadowed the fuller
constitutional doctrines that were later to come from his pen; it announced the
right of the state to "interpose" (nullification), and it sketched the
theoretical basis on which interposition could rest.
The important fact is that Calhoun had entered the lists; he had thrown
in his lot with his state; the doctrine of state sovereignty had found the
ablest and shrewdest of advocates. The "Exposition" was not adopted by the
legislature, but copies were printed. For the time being the legislature
contented itself with a formal protest against the constitutionality of the
protective system.
The right to "interpose" — a word borrowed from the Virginia
resolutions of 1798 — rested of course on the doctrine of state
sovereignty; [21] but the principle of complete and unmodified
sovereignty, except as to the right to judge, was not here, at the beginning,
brought out so clearly as at a later time.[22] Nor did Calhoun at
this juncture speak plainly about secession; he is, in fact, anxious to show
the middle way between secession on the one hand and humble acquiescence on the
other. It was not necessary to break up the union with a single blow. But the
states were competent and in duty bound to preserve their rights and save the
Constitution and the union. Interposition should naturally be carried out by
the state itself, not by the legislature. In the course of the next four years
Calhoun's theories were reiterated and developed.
South Carolina was not alone in her opposition to the tariff and
internal improvements, or indeed alone in the announcement of constitutional
principles. Georgia, in "her sovereign character", issued a protest against the
tariff (December 20, 1828). Virginia proclaimed the Constitution a federal
compact between sovereign states, and declared that each state had the right to
construe the compact for itself. There were other manifestoes of like
character. But some states of course supported the tariff and some repudiated
the constitutional theory of interposition. Kentucky's statement of principles
is especially noteworthy: South Carolina, said the state which a generation
before had passed the famous resolutions of 1798, cannot derive any aid from
the manner in which the Constitution was formed; "whether it was the work of
the people of the United States collectively, or is to be considered as a
compact between sovereign States, or between the people of the several States
with each other, there is, there can be, there ought to be, but one rule, which
is, that the majority must govern." [23]
In 1830 the great debate took place in the Senate between Robert Y.
Hayne of South Carolina and Daniel Webster of Massachusetts. It began with a
resolution introduced by Senator Foot of Connecticut respecting the sale of
western lands, a subject which stirred the feelings of men and induced them to
charge one section or another with entertaining selfish and narrow-minded
opinions concerning the general interests and the growth [24] of the
nation. In reply to charges made by Hayne, Webster seized upon the opportunity
to justify New England; and then the debate turned into an oratorical
controversy concerning the nature of the union and the validity of South
Carolina's theories which had already been put forth in the "Exposition" of
1828. The debate is important, not because of the clarity and cogency of
argument, but because it aroused popular interest.
Hayne's theories were in the main those of Calhoun; and of state
sovereignty he spoke with a certain degree of clarity: "The whole form and
structure of the Federal Government, the opinions of the framers of the
constitution, and the organization of the State Governments, demonstrate that,
though the States have surrendered certain specific powers, they have not
surrendered their sovereignty." He repudiated the old theory of divided
sovereignty. Madison, it will be remembered, about this time announced —
and he continued to announce — that the original and commonly-held belief
was that the states had given up a portion of their
sovereignty.[25]
Webster's theories concerning the nature of the union were essentially
those of Marshall. In his second reply to Hayne, he briefly discussed the
origin of the government: "I hold it to be a popular Government, erected by the
people ... and itself capable of being amended and modified, just as the people
may choose it should be. It is as popular, just as truly emanating from the
people, as the State Governments.... It is not the creature of the State
Governments." Such a statement, however, could make no impression on the
advocates of state sovereignty, for the people of the state were the state, and
consequently an adoption of the Constitution by the people constituted an
adoption by the state — that was the main pillar of the vast metaphysical
structure of state sovereignty. In the final "Remarks" (January 27, 1830)
Webster took a definite step forward, declaring the Constitution to have been
ordained and established by the people of the United States in the aggregate.
Thus, it appears, Calhoun's theories could be met either by declaring the
result of compact between sovereignties to be the establishment of a legal and
vital union, or by declaring that the Constitution emanated from a single will,
the people as a whole.[26]
It is unnecessary for us to go over the ground already traversed in the
preceding pages of this work. The reader is aware of the author's position,
namely, that the Federal Convention intended to establish a national government
in the full sense of the word; that the men ratifying the Constitution took the
same view of the document; and that the very fact of silence, the absence of
any declaration of a state's right to withdraw, is strong, if not absolutely
conclusive, evidence that the people believed they were entering upon a new
system different in essentials from the old Confederation of sovereignties.
Again it is well to bear in mind that Madison's Notes had not been
published; and without those notes no one could speak as confidently as we can
about the purpose of the Constitution-makers.[27]
There was no action in South Carolina until after the passing of the
tariff of 1832; then the leaders prepared to prevent the execution of the
tariff act and to preserve the Constitution — as the South Carolina
radicals viewed the Constitution.[28] Calhoun, now earnestly
consecrated to his doctrines, exposed them clearly. He with his converts
believed, or tried to believe, in the efficacy of passive resistance, if it
were necessary to resist at all after the state announced her will; the
national government could not legally use force against the state, and if
attempt at coercion were made, there would still be no way of compelling
obedience.[29]
The convention summoned by the legislature met late in November and drew
up an ordinance of nullification which declared the tariff acts void; it
declared that it should not be lawful for any state or federal authority to
enforce payment of the duties; that it should be the duty of the legislature to
pass laws to carry the ordinance into effect and prevent the enforcement of the
tariff acts after the first of February, 1833. It provided that no case
involving the authority of the ordinance or the validity of legislative acts in
conformity with it should be appealed to the federal Supreme Court. All
officers, excepting members of the legislature, and all jurors impaneled in any
cause involving the ordinance or any act passed for its execution must take
oath to obey the ordinance. Efforts of the federal government to execute the
nullified acts by military or naval force, or by shutting the ports of the
state, or by harassing her commerce, would be "inconsistent with the longer
continuance of South Carolina in the Union...." Addresses were issued by the
convention to the people of South Carolina and to the people of the United
States. The last of these documents, in which the people of the several states
were particularly named, announced the right of South Carolina to judge in the
last resort of the extent of her reserved powers; it asserted that the state,
any state, in resisting an unconstitutional act, was in reality supporting the
Constitution; and it suggested a general convention of the
states.[30]
The legislature met November 27 and proceeded to carry out the mandates
of the convention. It passed an act authorizing any consignee of goods to
replevy them from a federal collector; other methods were provided for
protecting the interests of the state and preventing the execution of the
tariff acts within the limits of the state; and, on December 18, definite
proposals were made to the other states for the summoning of a national
convention.
But Jackson, the headstrong and unreasonable Jackson, for whom the state
had cast its vote four years before, and in whom the milliners themselves had
for a time cherished a pleasant confidence, might so far forget himself as
actually to resort to arms; in fact, he had already let the nullifiers know his
stern opposition to theories and practices meaning disorganization and
disunion. The western Indian-fighter, Bank-smasher, and man of the people loved
the union and was incapable of discovering in Calhoun's subtle arguments the
method of reconciling and identifying disobedience and order. Evidently
nullification was not likely to be a peaceable procedure. So the nullifiers
provided for an army. Not all of the people of South Carolina, however, were
following in Calhoun's footsteps. The union men denounced the ordinance of
nullification as the "mad edict of a despotic majority".[31] They
too made preparations for resistance, and "some cried out 'enough!' 'what have
we to fear; we are right and God and Old Hickory are with us.' "
[32]
The most difficult portion of the task awaits us — a critical
exposition of Calhoun's theories. It is impossible in these pages to trace the
steps in their development during the twenty years after South Carolina had
given an object lesson in nullification; but fortunately, though there was
development, there was no particular inconsistency, and we can therefore
discuss his principles as a whole. At the outset this must be said: he sought
by all means to find legal basis for his position. This is significant. He was
not content with any "right of revolution", if we mean by that phrase the right
of any man or set of men to rise against the government and throw it aside
because it is intolerable. The state had the right and the duty to uphold the
Constitution and protect it from illegal assault by the general government. No
more characteristic attitude, nothing more consistent with what was or appeared
to be American temperament, could be imagined; unless people could be convinced
that law was on their side, there was little hope of arousing the spirit of
opposition to what was or seemed to be unfair and hurtful.
He must also make out — and in this, as always, he was doubtless
sincere — that state sovereignty and nullification would not involve
disorder and war; they were consonant not only with the written Constitution
but also with elementary and essential principles of the American system. He
must close his eyes and the eyes of others to the disorganizing effect of state
opposition to a national act. He must present the whole matter as conservative
and preservative; nullification would be carried through calmly, and without
tumult. He was prepared to defend a complicated but, as he would maintain,
thoroughly logical and sound system of preserving the union and the
Constitution; nullification would preserve the union by preventing the
perversion of the Constitution at the instance of particular economic or
sectional interests.
He did not shrink from upholding the cause of the minority against the
majority. As the years went by, this aspect became more pronounced. It was a
natural and inevitable position for any region in which the social and
industrial system was based on slavery, on the right of one man to own and
control fifty. Slavery, it is true, was not uppermost in the minds of men
during the nullification controversy of 1832-1833; a few years later the
fateful banns of wedlock between slavery and state sovereignty were proclaimed.
But, as we have seen, even in 1830 the disadvantage of the south was apparent;
the north was outstripping the south in population; and Calhoun had no sympathy
for a mere numerical majority. On the contrary, the whole genius of the
American system and the very existence of liberty were dependent, he believed,
on the right of a minority to be protected or to protect itself against the
tyranny of numbers. The cleverness with which he developed this doctrine,
especially in later writings, is impressive. It is perfectly true that our
institutions are not based on the principle that the majority can and must in
all respects have its way; the fathers, fearing the tyranny of an uncontrolled
majority, relied in part upon the efficiency of checks and balances as a means
of protecting liberty. In this matter, as in others, Calhoun so shrewdly and
ably used fundamentally sound notions to build up his extensive and complex
theories in defense of local and sectional rights, that one is astonished if
not convinced by his skill. How shrewd was his declaration that a negative on
governmental action is the heart and center of constitutionalism!
Furthermore, his own state furnished in her own history and her own
political institutions an example of recognizing interests and protecting
sections. South Carolina herself had contained — and less markedly as the
years went by, continued to contain — sectional and diverse interests
within her own borders. The politicians of South Carolina were experienced in
the art of solving a sectional problem by balancing section against section
within the state, or, more properly, of protecting slaveholding interests
against the back-country farmers.[33] And thus Calhoun found support
for the idea that interests must concur — the doctrine of the "concurrent
majority". Of course he did not see, nor did he wish to see, that it really
meant the concurrence of a minority, and hence, in all matters affecting the
interests of a minority, the determination by a minority.[34]
A letter from Calhoun to Hamilton,[35] written in the summer
of 1832, contains within its fifty printed pages the sum and substance of state
sovereignty and its corollary, the right to nullify and secede. There was not
— that was the core of his position — at that time, nor had there
ever been, any such political body as the American people; in that character
the people never performed a single political act. Such is his opening
declaration; and for his theories it is absolutely fundamental. The union is a
union of states as communities, and there is no direct and immediate connection
between the individual citizens of a state and the general government. By this
he must mean that the right to pass laws directed and applied to individuals
resulted from the antecedent consent of the state as a body politic; for the
contact between the general government and the individual citizen is too plain
for denial, and Calhoun did not as a rule fly in the face of the obvious. It
belongs to the state as a member of the union to determine in convention the
extent of the obligations into which it has entered and to declare an act void
and unconstitutional. The general government is the "joint agent" of the
states. To support some of his positions Calhoun referred to the journal of the
Federal Convention — a weak reed to lean upon. The government has no right
to exercise any control over a state, by force, veto, judicial process or in
any other way. The government of the United States is unlike the old government
of the Articles of Confederation, but the Constitution "is as strictly and as
purely a confederation, as the one which it superseded." [36]
A state has a right to nullify a law, but nullification is not
secession; nullification is essential for preserving the Constitution; without
it, the only remedy for unconstitutional exercise of power by the central
government would be the dissolution of the union. The object of nullification
by a single state is to compel the agent — the central government —
to fulfill the object of its creation.[37] Secession may follow upon
nullification, but that step would be taken only in case the other states
should undertake to grant or acknowledge the power objected to and uphold the
nullified act; then, and only then, if in the judgment of the nullifying state
the nature of the granted power defeats the object of the association or union,
the dissatisfied state can withdraw. In other words, a state should not
withdraw because of the misdeeds of the agent, but only because of the
misdeeds of the principals. Hence, whether the act in question is
unconstitutional, whether the nullifying state is right in its position, is a
question for the states, the principals, the contracting parties. The states,
if the matter is of great consequence, should meet in a general convention, for
in that body rests the power to correct error and repair injury. But even
there, in that gathering of sovereign states, a simple majority cannot decide
in favor of the act nullified; amendments to the Constitution may be made by
three-fourths of the states; that number must then be necessary for decision
adverse to the nullifying state; less than that number cannot
declare the nullifying state to be wrong and the act of the national government
to be constitutional. In other words, one more than one-fourth of the states
can proclaim the invalidity of any congressional act.[38] This
appears at first sight to be a startling conclusion; but it was entirely in
accord with the fundamentals of Calhoun's philosophy; the one intolerable thing
would be government by a numerical majority.
We need not upbraid Calhoun for not bringing too clearly into the light
the fact that not even three-fourths of the states could finally uphold the law
and hold the union together; even after such a vote, it would still be within
the right of a state to secede, because the state is sovereign. This right to
withdraw is acknowledged briefly by his admitting that secession may follow
nullification, but of course the right is not stressed, for he is under the
necessity of presenting his system as preservative and not dangerous to the
existence of the union.[39] Though he acknowledges constitutional
obligations, his whole theory of state sovereignty must be made to include the
right of the state to decide, for nothing can legally bind sovereignty. The
very essence of sovereignty, as he himself defined and defended sovereignty, is
the complete right of self-determination. It is almost pitiful, this
effort to find order in confusion, this desire to find a way of binding a state
that cannot be bound. And yet the elements of the process were on the whole
consistent: the states were sovereign, but there was no reason why one state
should not discover the opinion of the others before breaking up the union; to
give the other states an opportunity to pass upon the question of the
constitutionality of an act would be a courteous procedure; and at all events,
it looked well; it helped to give the whole theory and process an aspect of
legal solemnity.
Nullification, as Calhoun exposed it to view, has often been attacked. I
think I am right in saying that it never became a thoroughly acceptable
doctrine to the southern people. But it is hard to discover good grounds for
the objection, if state sovereignty be the premise.[40]
True, this method of preserving the union and maintaining states' rights
was complex, baffling; to the earnest defenders of the union and of the general
government it was essentially odious. As the Civil War approached, southern
leaders were inclined simply to threaten secession without resort to
nullification. As they became more and more irritated they were prepared to
say: "Accept our ideas or we leave you; we have the moral right and the
constitutional right to abandon you to your sins; we shall look after
ourselves." And yet, if the union was in reality a solemn system of actual
sovereignties — sovereignties in essence like Holland and France and Spain
and other nations of the world — then the principle of nullification was
not illogical. Why should not an aggrieved state declare an act void and ask
for the judgment of the rest?
Critics and advocates of Calhoun's theories have been wont to speak of
them as if they represented the Constitution as only a treaty between
sovereignties. It requires no intellectual effort to comprehend the nature of a
league of sovereignties or the nature of a treaty, and consequently such words
have been used to describe the union and the Constitution. But while Calhoun
held the whole structure to be the product of consent and agreement of
sovereign bodies, the difference between it and the structure of any common
league or any treaty arrangement was obvious. The facts needed to be faced; and
he faced them. He pointed to the undeniable fact: the Constitution was ratified
and the government was set up by the same general processes as those
followed in setting up the state constitutions and state governments. People
bestowed authority on governments. The general government rested on the same
basis as the state governments. How could the great logician be also a
magician and transmute a Constitution into a contract of alliance? He could, or
thought he could, bring the rabbit out of the hat because the states, that is
to say, the people acting in separate states, as separate corporate entities,
adopted the Constitution. The product of separate action could be
nothing more than an agreement; when the states (the people in
conventions) set up a central or a general government they did not by that act
destroy their existence as separate sovereignties.[41]
This of course is thin ice to stand upon; but on such frail support must
the highly-elaborated doctrine of state sovereignty stand, if it can stand at
all. We have reached here the very heart of the state sovereignty argument:
separate adoption of the Constitution does not, cannot, transform the
people of the various states into one political body.[42]
What can be said of such an assertion? It does not belong in the field
of history or of law; if it have any truth in it, the dogma must belong in the
field of metaphysics. Why cannot thirteen separate peoples, acting separately,
fuse themselves by their own determination into a single new state? What
prevents them? If the people of Brazil, Argentina, Chile, and Uruguay should,
each acting in geographic separation one from the other, decide upon entering
into a new whole with its own government, would anyone say that they could not
do so? What is there in the nature of terrestrial or celestial verities to
prevent their doing that very thing? And if they succeed in doing it, must we
still hold it impossible?
The principles of Calhoun almost defy abbreviation, if they be treated
justly; and still the basic doctrines, of which perhaps he was not altogether
conscious, can be extracted from the many thousands of words he devoted to
their defense:
I. Separate action of individual communities cannot create a new
being.
A. The states separately adopted the Constitution.
B. Therefore the Constitution did not establish a new
entity.
II. The result of a compact or contract among equals is
not a law; for law is the mandate of a superior.
A. The states were equal when they ratified the Constitution,
therefore the Constitution is not law.
III. Sovereignty is indivisible; and as no one would contend that the
states surrendered all of their sovereignty, they must have retained all of it.
In its elements, state sovereignty, begotten by practical economic need
and used with astonishing skill in practical politics, was a philosophy. How
could the assertions of such a philosophy be met? The fact is that the very
statement of the doctrine of state sovereignty, if coldly analyzed, manifests
its inherent weakness. It is too metaphysical, too detached from the realities
of politics, to be convincing. If people, north or south, did actually read the
documents, could the readers understand them? We are entitled to doubt it. And
still, this theory, with all its subtlety and elaborateness, gave strength to
those wishing to believe.
Need we point out again that the theory of state sovereignty does not
rest on statements made when the Constitution was framed and adopted
(1787-1788)? — that is to say, it does not rest on contemporary
testimony to the effect that a state could withdraw from the union. No
such testimony has been found.[43] The omission of the word
"national" by the Philadelphia Convention and the failure to provide in the
Constitution for the use of force against a state are spoken of by
Calhoun,[44] but in his early papers he had to rely on the published
journal and from that he could get no clear idea why the Convention did not
decide for the coercion of states as corporate entities and why the word
"national" was omitted.
The state sovereignty argument could be met and was met by two different
lines of assertion, (1) If the Constitution was a compact, it nevertheless was
binding and was law. This was in accord with earlier political philosophy, the
philosophy of the eighteenth century, the philosophy of the men who made the
Constitution: all free governments rest on compact; all authority springs from
consent. (2) The Constitution was ratified by the people of the United States
in their aggregate capacity, though they met in geographically-separated areas.
Both of these lines of attack were used; in the earlier days the first was
chiefly relied upon. We have already seen Webster beginning to use the latter
theory. Doubtless, however, the declaration most satisfying to the average
person was to the effect that the Constitution meant exactly what it said
— that it was "law", because it said so, and no state or person could deny
its binding effect.[45]
Jackson replied to the ordinance of South Carolina with his famous
proclamation. It was ably written. There has been some discussion over its
authorship, but it is saturated with Jackson's spirit, with his own indomitable
and imperative nature. It was dignified and stern, but not wanting in a certain
kindly, or to use his own word, "paternal" quality. No one can overestimate the
importance and continuing effect of Jackson's influence; that he of all men,
the embodiment of frontier nationalism, the man of the plain people, the leader
of the new democracy and the new party, took a decisive stand against
disorganization was of the utmost consequence for the future. He not only used
words, he was ready to fight.[46] He spoke of his belief in the
Constitution; he deplored "the threat of unhallowed disunion"; he appealed to
love of country; he begged the men of South Carolina to retrace their steps;
and he announced his duty to enforce the law: "The laws of the United States
must be executed, I have no discretionary power on the subject; my duty is
emphatically pronounced in the Constitution. Those who told you that you might
peaceably prevent their execution deceived you; they could not have been
deceived themselves.... Their object is disunion. But be not deceived by names.
Disunion by armed force is treason." Those were fateful words.
Jackson had no misgivings about the Constitution and the nature of the
union. His peculiarly straightforward statement must have satisfied many
persons bewildered by Calhoun's words and the announcements of the nullifiers.
He was not to be led away and deluded by metaphysics.[47] "The
Constitution of the United States, then, forms a government, not a
league; and whether it be formed by compact between the States or in any other
manner, its character is the same.... Because the Union was formed by a
compact, it is said the parties to that compact may, when they feel themselves
aggrieved, depart from it; but it is precisely because it is a compact that
they can not. A compact is an agreement or binding obligation." And thus we see
the conflict of ideas: on one side the assertion that, as the Constitution was
a compact, it was not binding; on the other, the announcement that because it
was a compact it was binding.
The various states of the union answered South Carolina. Those answers
are interesting documents and they disclose an interesting situation, for not
one state supported South Carolina's contention — strange fact, if
Calhoun's and Hayne's theories were the old and hence technically sound, and
Webster's, Jackson's, and Marshall's the new. It is not quite clear whether
every state would have denounced secession as distinguished from nullification;
but none of them upheld nullification. Georgia proclaimed her abhorrence of
nullification as neither a peaceful nor a constitutional remedy; Alabama
resolved that nullification was "unsound in theory and dangerous in practice",
and that it was "unconstitutional and essentially revolutionary...." North
Carolina declared the doctrine was "revolutionary in its character" and
"subversive of the Constitution"; Mississippi acknowledged herself in hearty
accord with the political sentiments of the President and deplored
nullification as contrary to the letter and spirit of the Constitution.
Virginia adhered to the resolutions of 1798 as the true interpretation of the
Constitution, but denied that the resolutions upheld either South Carolina on
the one hand or the President on the other — a statement leaving us in
doubt, but certainly not advocating the theories of South Carolina. Of the
northern and western states it is unnecessary to speak; they condemned the
revolutionary doctrines. Maine approved the spirit and tone of the President's
address but upheld states' rights without giving any distinct evidence of
supporting state sovereignty.[48]
The report of the Massachusetts joint select committee is especially
illuminating as an example of the application of the old "compact" thinking.
The committee saw that nullification rested on this assumption: the states were
independent of each other when they formed the Constitution; therefore they
were independent afterwards. "... there can be no doubt," the committee said,
"that independent States are morally as capable of forming themselves into a
body politic, as independent individuals." Thus the answer to the assertion
that the Constitution is a compact and therefore not a binding law, is to
assert that, if the Constitution is a compact, it is a binding law.
In his annual message of December, 1832, Jackson had recommended a
reconsideration of the tariff, saying that "the policy of protection must be
ultimately limited to those articles of domestic manufacture which are
indispensable to our safety in time of war." In a special message to Congress
(January 16, 1833) he proposed the passage of such federal legislation as would
insure the protection of persons and property by the federal courts, and, in
case there should be forcible resistance, would fully authorize the use of land
and naval forces of the United States.[49] This latter proposal was
embodied in a measure mildly called "An Act further to provide for the
collection of duties on imports", but commonly called the "force bill" or
the "bloody bill". While a new tariff act and the "force bill" were under
consideration in Congress, South Carolina postponed the application of the
measures for enforcing the nullification ordinance.
The "force bill" and the measure for reducing the tariff proceeded
together. The Senate passed the "force bill" on February 20 and the tariff bill
on March 1. The House passed the tariff bill on February 26 and the "force
bill" on March 1. The so-called "compromise tariff" provided for gradual
reduction of duties, during the succeeding years, until by the middle of 1842 a
general level of twenty per cent was reached.
South Carolina had succeeded; so the enthusiastic nullifiers
believed.[50] The state repealed the ordinance of nullification and
passed a new ordinance nullifying the "force bill". Accepting the olive branch
of the tariff, the convention rejected with scorn the rod of national
authority. And yet, on the surface at least, Calhoun's theories had failed.
They had received no substantial support from any one of the legislatures of
the other states — even from those hostile to the tariff. The votes in
Congress are significant. There were forty-eight senators; their vote on the
"force bill" stood thirty-two in favor and one opposed; fifteen members did not
vote. The one Senator voting in the negative was John Tyler of Virginia. Among
those voting in the affirmative were one Senator from Virginia, one from
Georgia, two from Louisiana. In the House 149 members voted in favor of the
"force bill", forty-seven against.[51] It is possible that some of
these men voting to uphold the authority of the government by force and arms
would have declared that a state could secede but could not nullify; until it
was out of the union its citizens must obey the law. But such a position
appears quite unlikely.
[1] August 15, 1825. Ames, State Documents, no. 3, p.
31. The impressive thing about Troup's letters is the tone of ill temper and
arrogance. In one letter to the war department he said, "the President of the
United States may rest contented that the Government of Georgia cares for no
responsibilities in the exercise of its right and the execution of its trust,
but those which belong to conscience and to God, which, thanks to Him, is
equally our God as the God of the United States." June 25, 1825. In
Ibid., no. 3, p. 30. If Georgia was a sovereign state, connected only
with others in an international arrangement (the Constitution of the United
States), then her authorities were using language not quite consistent with
diplomatic courtesy; and if such methods were to be followed, they were sure to
produce war in any kind of international arrangement. In other words, even if
Georgia were a completely sovereign state, a reasonable degree of good manners
would be a desirable possession.
[2] The legislature in 1827, objecting to an appropriation by
Congress for the aid of the African Colonization Society, declared the "Federal
compact" was made between independent sovereignties by which each relinquished
"portions and like portions of its sovereign power...." See U. B. Phillips,
Georgia and State Rights, Am. Hist. Asso. Report for 1901, II, p.
115. This is noteworthy as an example of the adherence, even in those times of
excitement, to the doctrine of the idea of divided sovereignty. Troup, in a
letter to the Georgia congressmen, referring to the Indian dispute, said: "I
consider all questions of mere sovereignty as matter for negotiation between
the States and the United States, until the proper tribunal shall be assigned
by the Constitution itself for the adjustment of them." February 21, 1827.
Quoted in Ibid., p. 64.
[3]Acts of the General Assembly (1828), p. 89.
[4] Tassel is the spelling used in Cherokee Nation v.
Georgia, 5 Peters 1, 12 (1831).
[5] Cherokee Nation v. Georgia, 5 Peters 1, 15, 20
(1831). The Constitution gives the federal courts jurisdiction of suits and
controversies "between a State, or the citizens thereof, and foreign states,
citizens, or subjects." Art. III, sec. 2, para. I. Cf. United States v.
Kagama, 118 U. S. 375 (1886), where the Court announced the rather obvious
facts that the relation of the Indian tribes to the people of the United States
had always been "an anomalous one and of a complex character", and that the
tribes had been "regarded as having a semi-independent position" not as states
or nations but as a separate people, with the power of regulating their
internal concerns and thus far not brought under the laws of the union or of
the state within the limits of which they resided. In this case the Court
recognized the right of Congress to enact legislation providing for the
punishment of crimes committed by Indians on an Indian reservation. It
sustained federal authority chiefly by asserting that the Indian tribes are
"wards of the nation" and "communities dependent on the United States."
For discussion of the problem, see J. B. Thayer, "A People Without Law,"
Legal Essays, p. 91 ff. The truth seems to be that the Court has upheld
as constitutional what the political branches of the federal government have
actually undertaken to do in their handling of this difficult problem.
[6] Worcester v. Georgia, 6 Peters 515, 561 (1832).
"The Cherokee Nation ... is a distinct community, occupying its own territory,
with boundaries accurately described, in which the laws of Georgia can have no
force, and which, the citizens of Georgia have no right to enter but with the
assent of the Cherokees themselves or in conformity with treaties and with the
acts of Congress.... The act of the State of Georgia under which the plaintiff
in error was prosecuted is consequently void, and the judgment a nullity."
[7] Nine of the prisoners availed themselves of the
Governor's pardon before Worcester's case came before the Court. See Phillips,
op. cit., pp. 80, 83.
[8] Letter to J. E. Calhoun, August 26, 1827.
Correspondence of John C. Calhoun, Am. Hist Asso. Report for
1899, II, p. 250.
[9] F. J. Turner, Rise of the New West, p. 47. Turner
says these figures are illustrative rather than exact.
[10]Ibid., p. 325.
[11] In these figures, Delaware is included in the middle
states, Maryland and the District of Columbia in the old south. I have followed
in this respect the tables in A Century of Population Growth, published
by the Bureau of the Census, 1909. Kentucky and Tennessee I have not included
in the old south. Pennsylvania's increase in population was 298,775 and the
increase of the population of the old south was 377,218.
[12] Timothy Pitkin, A Statistical View of the Commerce of
the United States (1835 ed.), p. 518. In 1828 Calhoun estimated the annual
exports at $53,000,000, over two-thirds being raised on southern
plantations.
[13] "We must speedily adopt a genuine American policy. Still
cherishing a foreign market, let us create also a home market, to give further
scope to the consumption of the produce of American industry." "Are we doomed
to behold our industry languish and decay yet more and more? But there is a
remedy, and that remedy consists in modifying our foreign policy, and in
adopting a genuine American system. We must naturalize the arts in our country,
and we must naturalize them by the only means which the wisdom of nations has
yet discovered to be effectual — by adequate protection against the
otherwise overwhelming influence of foreigners." Henry Clay in the debate on
the tariff of 1824. Annals of Congress, 18 Cong., 1 sess., cols. 1970,
1978. It is impossible here to consider the attitude of the different sections
toward the tariff in the decade from 1820 to 1830. For discussion, see F. J.
Turner, Rise of the New West, pp. 145-147, 236 ff.; F. W. Taussig,
The Tariff History of the United States (7th ed. revised), p. 68 ff.
[14] See, for example, a speech of Langdon Cheves of South
Carolina. Annals of Congress, 12 Cong., 1 sess., cols. 734-735.
[15] Calhoun, Works (R. K. Crallé, ed.), II,
pp. 190, 192. The speech as given in the Annals of Congress, 14 Cong., 2
sess., cols. 854-855, differs in some respects from that given in the
Works.
[16] The report seems to have been adopted by the house. See
Ames, State Documents, no. 4, pp. 2-3.
[17]Defence of a Liberal Construction of the Powers of
Congress, pp. 7-8.
[18] Gaillard Hunt, in his John C. Calhoun, p. 75,
quotes from the Southern Patriot and Commercial Advertiser (1822) an
interesting statement of the difference between South Carolina and Virginia:
"The former believe that when all the departments of the general government
have affirmed the constitutionality of an act of Congress, no state has a right
to oppose it by penal laws any more than certain other states had a right to
oppose, positively or negatively, the late war with Great Britain; whereas, the
latter contend that a state, being sovereign, has a right to decide for herself
whether the general government has exceeded its power or not, and to refuse to
yield obedience to its laws accordingly." This statement must be read in light
of South Carolina's remaining antagonism to New England's opposition in the war
of 1812, and it is also a bit severe on Virginia, but it does not on the whole
misrepresent South Carolina's history.
[19] This, it may be said, was not necessarily and
entirely inconsistent with the doctrine of state sovereignty as Calhoun
later exposed it. Under that doctrine, the state, not the legislature, is the
final judge.
[20] Calhoun, in a letter to Monroe, July 10, 1828, after
lamenting the undue burden carried by the south, said: "It seems to me that we
have no other check against abuses, but such as grow out of responsibility, or
elections, and while this is an effectual check, where the law acts equally on
all, it is none in the case of the unequal action to which I refer."
Correspondence of John C. Calhoun, Am. Hist. Asso. Report for
1899, II, pp. 266-267. Too much emphasis may be laid on this letter, but it is
difficult to refrain from assuming from it that Calhoun had not then carefully
studied the terrain of state sovereignty, or had not made up his mind to enter
boldly into its defense.
[21] The essential novelty of Calhoun's position consisted in
his assumption of the indivisibility of sovereignty; sovereignty was a whole;
to mar it or to diminish it was to destroy it. John Taylor had already
presented the essential character of sovereignty as Calhoun exposed it. "In the
early years of the Republic it had been generally believed that in the United
States there existed a divided sovereignty." C. E. Merriam, A History of
American Political Theories, pp. 278-279. "Up to the time when the theory
of Calhoun became influential, the characteristic American doctrine was that in
the United States, whatever might elsewhere obtain, the sovereignty had been
divided into several portions without the destruction of its life principle."
Ibid., p. 260. See also, for discussion and evidence, A. C. McLaughlin
The Courts, the Constitution and Parties, pp. 189-242.
[22] After saying that "sovereign powers delegated are
divided", he declares that "The right of judging ... is an essential attribute
of sovereignty, — of which the States cannot be divested without losing
their sovereignty itself, — and being reduced to a subordinate corporate
condition." Works, VI, p. 41. See also p. 56.
[23] See Ames, State Documents, no. 4, p. 23 ff. This
volume contains the most essential documents for the period.
[24] The situation as it was in 1828 is thus presented by
Professor Wellington: "The interest of the different sections in these issues,
in the order of their importance, was as follows: The Northwest —
low-priced public lands, internal improvements, a high tariff; the Southwest
— low-priced public lands, a low tariff, internal improvements; the
seaboard South — a low tariff, no internal improvements at federal
expense, high-priced public lands; the North Atlantic States — a high
tariff, high-priced public lands, internal improvements." R. G. Wellington,
The Political and Sectional Influence of the Public Lands 1828-1842, p.
9. Each section, however, needed the assistance of another or others to get
what it specially desired; hence combinations and logrolling. The whole subject
is of great importance, especially in political history rather than in
constitutional. Louisiana's interest in sugar helped that state to look with
favor on the tariff. See her resolutions of March 15, 1830. Kentucky had hemp
for which protection was sought, and Ohio had wool.
[25] "It has hitherto been understood that the supreme power,
that is, the sovereignty of the people of the States, was in its nature
divisible, and was, in fact, divided ...; that as the States, in their highest
sovereign character, were competent to surrender the whole sovereignty and form
themselves into a consolidated State, so they might surrender a part and
retain, as they have done, the other part.... Of late, another doctrine has
occurred, which supposes that sovereignty is in its nature indivisible...."
Madison, Letters and Other Writings (1865 ed.), IV, pp. 390-391. See
also pp. 61, 63, 75, 294, 395, 419. See the chapter in the present volume on
the Virginia and Kentucky resolutions.
[26] It is interesting to notice that Webster, when replying
to Calhoun at a later time, February 16, 1833, quoted the words of New
Hampshire and Massachusetts in ratifying the Constitution: "They recognize the
Divine goodness 'in affording the people of the United States an opportunity of
entering into an explicit and solemn compact with each other, by assenting to
and ratifying a new Constitution.' You will observe, Sir, that it is the
people, and not the States, who have entered into this compact; and it is the
people of all the United States." Capitalization and italics of the original
omitted. Webster, Works, III, p. 476. This speech of Webster, although
perhaps not so lofty in diction as the second reply to Hayne, appears on the
whole to meet the state sovereignty theory more satisfactorily.
[27] After the Civil War, Alexander Stephens wrote and
published his Constitutional View of the Late War Between the States.
The argument in favor of state sovereignty is largely taken up with the
assertion that the states were sovereign before the ratification of the
Constitution. He quotes documents in which the word "confederacy" was used when
the union or the Constitution was spoken of in the early days. That fact seems
to him to be conclusive. Well, Lincoln in February, 1861, spoke of the union as
a confederacy. Did he mean that the states could rightly secede?
[28] The members of the South Carolina delegation in
Congress, with three exceptions, before leaving Washington after the passage of
the act of 1832, drew up an "Address to the people of South Carolina", in which
they declared that all hopes had vanished, the protective system was the
settled policy of the country. "They left the question of remedy to the
sovereign power of the state." See C. S. Boucher, The Nullification
Controversy in South Carolina, pp. 170-171.
[29] "In considering this aspect of the controversy, I pass
over the fact that the General Government has no right to resort to force
against a State.... Let it, however, be determined to use force, and the
difficulty would be insurmountable, unless, indeed, it be also determined to
set aside the Constitution, and to subvert the system to its foundations.
Against whom would it be applied? Congress has, it is true, the right to call
forth the militia 'to execute the laws and suppress insurrection;' but there
would be no law resisted, unless, indeed, it be called resistance for the
juries to refuse to find, and the courts to render judgment, in conformity with
the wishes of the General Government; no insurrection to suppress; no armed
force to reduce; not a sword unsheathed; not a bayonet raised; none, absolutely
none, on whom force could be used, except it be on the unarmed citizens engaged
peaceably and quietly in their daily occupations." Calhoun to General Hamilton,
August 28, 1832. Calhoun, Works, VI, pp. 163-164.
[30] See State Papers on Nullification, p. 59 ff. Cf.
Calhoun, Works, VI, p. 193 ff., especially p. 207.
[31] Boucher, op. cit., p. 244.
[32]Ibid., p. 247, quoting a letter from James O.
Hanlon to Jackson, December 20 1832, which tells of a convention of union
men.
[33] See W. A. Schaper, "Sectionalism and Representation in
South Carolina," Am. Hist. Asso. Report for 1900, I, p. 237 ff.
[34] The doctrine of the "concurrent majority" appears
inconsistent with or certainly not in natural harmony with the doctrine of
state sovereignty. We should notice that, if it is applicable at all, anywhere
or at any time, it is only applicable where there are distinct interests; for
the basic theory is that each interest must concur with the other; in other
words, each interest must have a veto on the other. It is thus a device not
logically associated with the doctrine of the absolute will of the individual
sovereign state over its own affairs. "The necessary consequence of taking the
sense of the community by the concurrent majority is, as has been explained, to
give to each interest or portion of the community a negative on the others."
"It is this negative power, — the power of preventing or arresting the
action of the government, — be it called by what term it may, — veto,
interposition, nullification, check, or balance of power, — which, in
fact, forms the constitution. They are all but different names for the negative
power. In all its forms, and under all its names, it results from the
concurrent majority. Without this there can be no negative; and, without a
negative, no constitution." In other words, there must be for constitutional
action, in any really constitutional government, the coöperation and
consent of distinct interests, not merely a numerical majority, and this right
of each to dissent and thus prevent action he quaintly transfuses into
"concurrent majority". These excerpts are from "A Disquisition on Government,"
Works, I, p. 35, which was written near the end of his life, but the
doctrine was briefly set forth in 1832. See Works, VI, p. 181 ff. "Such
is the solidity and beauty of our admirable system — but which, it is
perfectly obvious, can only be preserved by maintaining the ascendency of the
constitution-making authority over the law-making — the concurring over
the absolute majority." Ibid., VI, p. 186. Capitalization of the
original omitted.
[35]Works, VI, p. 144 ff.
[36]Works, VI, p. 158. Italics of the original
omitted.
[37] "On the contrary, the object of nullification is to
confine the agent within the limits of his powers, by arresting his acts
transcending them, not with the view of destroying the delegated or trust
power, but to preserve it, by compelling the agent to fulfil the object for
which the agency or trust was created; and is applicable only to cases where
the trust or delegated powers are transcended on the part of the agent."
Works, VI, pp. 168-169. Italics of the original omitted.
[38] "The amending power, in effect, prevents this
danger. In virtue of the provisions which it contains, the resistance of a
State to a power cannot finally prevail, unless she be sustained by one fourth
of the co-States...." Works, VI, p. 175- See also pp. 176-178, and I, p.
290 ff.
[39] In later years he still acknowledged that "by the solemn
obligation which it contracted, in ratifying the constitution", the state is
bound to acquiesce unless the decision of the amending authorities is
inconsistent with the ends for which the Constitution was established. Of this
inconsistency the particular state must in the end be the judge. Works,
I, pp. 300-301.
[40] In the letter to Hamilton, referred to above, Calhoun
said: "There are many who acknowledge the right of a State to secede, but deny
its right to nullify; and yet, it seems impossible to admit the one without
admitting the other." Works, VI p. 170.
[41] "Thus viewed, the Constitution of the United States,
with the government it created, is truly and strictly the Constitution of each
State, — as much so as its own particular Constitution and Government,
ratified by the same authority, — in the same mode, and having, as far as
its citizens are concerned, its powers and obligations from the same source,
— differing only in the aspect under which I am considering the subject,
— in the plighted faith of the State to its co-States, and of
which, as far as its citizens are considered, the State, in the last resort, is
the exclusive judge." Works, VI, p. 152. To the same effect is his
statement in his "Discourse on the Constitution and Government of the United
States." Notice there he also distinguishes between a federal government and a
confederacy. Works, I, pp. 167-168.
[42] John Taylor had plentifully labored the same idea.
Calhoun insisted on it: there was not a single creative whole — an
American people in 1788; therefore the Constitution was not the expression of a
common will.
[43] See the chapter in this work on the Federal Convention.
Reference has been made in a preceding chapter to resolutions passed by certain
states when they ratified the Constitution; they do not uphold Calhoun's
theories. If Calhoun had studied, really studied, Madison's Papers, when
they were published in 1840, and had he known the elements of the compact
philosophy, he would have had a more difficult task to maintain his theories.
[44]Works, I, pp. 113-114; VI, p. 154 ff.
[45] For fuller discussion, see A. C. McLaughlin, The
Courts, the Constitution and Parties, pp. 189-242, or "Social Compact and
Constitutional Construction," Am. Hist. Rev., V, pp. 467-490; The
Foundations of American Constitutionalism. The truth is there was at that
time a shifting away from the compact philosophy and the coming in of a new
organic or vital or social philosophy, and men of course did not see it.
Calhoun himself was speaking in terms of the new; he applied it to the state;
the state was a living being with a will, built up by historical and social
forces. But he would not see that perhaps the same could be said of the United
States. What was to hinder one from seeing the Constitution as the product of
social forces, seeing it as the will of a people really existing, though they
met in sections and used existing political machinery to record their will? If
one rejects as metaphysically impossible the notion that separate action
can beget unity and create a new whole out of diversity, why not recognize at
least the possibility of there being a single vital force in 1788 beneath the
phenomenon of separate action? Had Calhoun done so, his own political
philosophy would have been consistent and in line with the developing fact and
theory of society as a living, forceful thing. For the new philosophy looks
always below phenomena, below and beyond mere surface acts, to the deeper
reality; and it can find unity in apparent diversity. The historian, for
example, and the plain citizen of the present day, though unlearned in history,
is not content with phenomena, but seeks the eternal and underlying truth, the
vital force, of which men themselves are not quite aware.
[46] See Boucher, op. cit., ch. VII, for Jackson's
determination. Van Buren, in his Autobiography, Am. Hist. Asso.
Report for 1918, II, p. 544, says of Jackson, "He had at this time, it
must be admitted, one feeling which approached to a passion and that was an
inclination to go himself with a sufficient force, which he felt assured he
could raise in Virginia and Tennessee, as 'a posse comitatus' of the
Marshal and arrest Messrs. Calhoun, Hayne, Hamilton and McDuffie in the midst
of the force of 12,000 men which the Legislature of South Carolina had
authorized to be raised and deliver them to the Judicial power of the United
States to be dealt with according to law. The reader will find this project
more than once stated in his letters to me written currente calamo."
[47] "Now, is it possible that even if there were no express
provision giving supremacy to the Constitution and laws of the United States
over those of the States, can it be conceived that an instrument made for the
purpose of 'forming a more perfect union' than that of the Confederation
could be so constructed by the assembled wisdom of our country as to substitute
for that Confederation a form of government dependent for its existence on the
local interest, the party spirit, of a State, or of a prevailing portion in a
State? Every man of plain, unsophisticated understanding who hears the question
will give such an answer as will preserve the Union. Metaphysical subtlety, in
pursuit of an impracticable theory, could alone have devised one that is
calculated to destroy it." Richardson, Messages and Papers, II, p.
643.
[48] For the situation in Georgia, see Phillips, op.
cit., ch. V. Phillips says that the editor of Niles's Register, in
noting political events in Georgia from 1819 to 1833, declared many times that
it was impossible to understand Georgia politics. We may take refuge in the
same ignorance. In truth, conditions were confusing. There were personal
factions and geographical sections and other perplexing differences. But both
houses of the state legislature by a decided majority repudiated nullification
as being neither a peaceful nor a constitutional remedy (November 20, 1832).
Ibid., pp. 127, 130-131.
[49] January 24, 1833, Jackson wrote Poinsett, union leader
in South Carolina, that if Congress failed to act, and he was informed of
"illegal assemblage" to oppose the revenue acts, he would issue a warning to
disperse, and if the assemblage did not comply he would call into the field a
force sufficient to "overawe resistance, put treason and rebellion down without
blood, and arrest and hand over to the judiciary for trial and punishment, the
leaders, exciters and promoters of this rebellion and treason." Poinsett MSS.,
quoted by J. B. McMaster, A History of the People of the United States,
VI, p. 163 note.
[50] McMaster says that the Columbia Telescope (March
12, 1833) declared: "This little State has defied the swaggering giant of the
Union. Thirteen thousand Carolinians have not only awed the wild West into
respect, compelled Pennsylvania stolidity into something like sense, New York
corruption into something like decency, Yankee rapacity into a sort of image of
honesty, but they have done all this loftily and steadily and in the face of
seventeen thousand betrayers of the liberty of their own State." McMaster,
op. cit., VI, p. 169. This was the spirit that finally brought
devastation upon the state and decades of attempted recuperation.
[51]Journal of the Senate, 22 Cong., 2 sess., pp.
198-199; Journal of the House, 22 Cong., 2 sess., pp. 453-454. See also,
Congressional Debates, 22 Cong., 2 sess., appendix, p. 1. Eight of the
states then in the union seceded in 1861; but in 1833 twenty-seven of their
sixty-three representatives voted for the "force bill". All this furnishes a
pretty strong support of the prevalent belief that the government was a real
government and could enforce its laws even though a state in convention
attempted to nullify them.
