Strictures on Nullification

So much for the first reason, why the doctrine, that a principal has, in ordinary cases, an unlimited right to construe the powers, and disavow the acts of his agent, – were it even true, as we have shown that it is not, – would in no way help the Vice-President's argument. Carolina is one of a number of principals, composing a partnership concern; and if she have any doubts about the propriety of the proceedings of the common agent, her only course is to consult with her co-partners, and to acquiesce in the opinion of the majority. But there is another reason still more substantial, why the doctrine in question, even if true, would be of no service to the Vice-President: – a reason leading at once to the heart of the whole argument, of which the matters thus far touched upon are merely the 'limbs and outward flourishes;' and that is, that a Government, although it may in a certain sense be called an agency, is an agency of a peculiar kind, carrying with it rights and obligations, of which the nature and extent cannot be deduced by analogy from those which are incident to the relation of agent and principal in private life, and can only be determined by a correct analysis of the structure of society and the original principles of the human constitution.

That the Government of the United States, though described as an agency, is to all intents and purposes a real Government, is frankly admitted by the Vice-President himself. 'In applying the term agent to the General Government, I do not intend to derogate in any degree from its character as a Government. It is as truly and properly a Government as are the State Governments themselves. I have applied it simply because it strictly belongs to the relation between the General Government and the States, as in fact it does also to that between a State and its own Government. Indeed, according to our theory, Governments are in their nature but trusts, and those appointed to administer them trustees or agents to execute the trust powers. The sovereignty resides elsewhere, – in the people, and not in the Government.' '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.'

In these principles we fully concur, but in laying them down in this distinct and unequivocal manner, the Vice-President has, as we humbly conceive, conceded the whole matter in controversy, and given up every inch of ground which he had to stand upon. If it could be made out that the two Houses of Congress, the President, and the various executive and judicial officers acting under them, are not a proper Government, but a mere agency constituted by four and twenty mutually independent States for certain specific objects, it would follow, not precisely that the theory of nullification is true, for this, as we have seen, is, at least as stated by the Vice-President in the document before us, not merely unconstitutional, but in itself essentially impracticable, incongruous and absurd: – but that any State which might be, for any or no reason, tired of the arrangement, would have a perfect right, after such consultation and advisement with the other parties as might be necessary to secure their interests, to revoke its powers. But the moment it is admitted that the two Houses of Congress, the President and the executive and judicial officers acting under them, – by whatever name they may be called, – are a real Government: – that the instrument by which they hold their powers is a real Constitution, the case changes. By the Constitution of Government, is meant, in every community, the great social compact which binds together the individual members into one body politic or political society. Whatever may be its form, character, or origin, – whether it be written or unwritten; – free, limited, or despotic; – whether founded in force, fraud, or voluntary association; – whether created by a number of previously independent States or by a number of previously independent individuals, so long as it is and is admitted to be a real Constitution of Government, it carries with it certain incidents which belong to it as such, and which are inseparable from its nature. Of these incidents, essential properties or characteristics of the social compact, the first in order are that the parties to it have not a moral right to withdraw from it at discretion, or to construe at discretion the powers of the Government created by it, but are bound to remain parties to it, and to acquiesce in the acts of the Government created by it, excepting in those extreme cases which justify open rebellion. These are principles universally acknowledged. No one has ever questioned them; no one has ever undertaken to maintain that the members of a political society have a right to withdraw from it at discretion, or that the laws of the land are not in ordinary cases binding on the citizens. The principle is equally true under all forms of government, as the Vice-President himself very correctly intimates, when he states that the relation between the General Government and the States is the same with that between the States and their own Governments, or in general between all Governments and the societies in which they are established.

Such are the principles which, by universal acknowledgment, determine the relations between Governments and the political societies in which they exist. When therefore the Vice-President fully and formally admits that the two Houses of Congress, the President, and the executive and judicial officers acting under them are a real Government; – that the instrument by virtue of which they hold their powers is a real Constitution or social compact, he admits, – if he choose at the same time to describe them as an agency, – that they are an agency which the parties that constituted it, whether States or individuals, have not a right to revoke at discretion; an agency which construes its own powers, and has a right to enforce its own construction of them upon its principals, excepting in the extreme cases which justify a violent resistance to the law: he admits that nullification is either wholly unjustifiable or justifiable only as resistance: he admits, in a word, that nullification, if it have any proper and intelligible meaning at all, is only another name for rebellion. This is, in fact, the real truth of the whole business.

And this being the case, it is apparent that, even if the acts which the nullifiers propose to perform were justifiable, it would be on principles other than those which they profess; that their theory would still be erroneous, and their language incongruous and absurd. In certain extreme cases, the citizen is justified in resisting the execution of the law; but even then he has neither the right nor the power to annul or repeal it. This is an operation, which from its nature can only be performed by the same authority which enacted the law, viz: the Government of the country. The supposition made by the nullifiers, that in certain cases a citizen or a certain number of citizens have a right to annul or repeal the law of the land, is not merely an error, but a manifest absurdity, involving a contradiction in terms. In the cases which justify resistance, the principle upon which the citizen proceeds, is not that he has a legal or constitutional right to annul or repeal the offensive law, – which is the doctrine of the nullifiers, – but that he has a right, which he admits to be illegal and unconstitutional, but which he claims as a natural one, to make a violent opposition to its execution.

Such is the second reason, why the doctrine that a principal has, in ordinary cases, an unlimited right to construe the powers and disavow the acts of his agent, – were it even true, as we have shown that it is not, – would in no way help the Vice-President's argument. The General Government, if it be an agency, is an agency of a peculiar kind, which, from its nature, is not revocable at the discretion of the parties that constituted it, which construes its own powers, and which has a right to enforce its construction of them against that of its principals, excepting in those extreme cases that authorize rebellion.

This, as we have said, is the principal and leading consideration which governs the whole subject. Once admit, what the Vice-President fully recognises, and what no man in his senses can deny, that the General Government, call it agency or what you will, is a real Government; – that the instrument from which it derives its power is a real Constitution or social compact, and the argument is brought to a close; there is not a word more to be said about the matter. The acts of the Government are, as such, the law of the land. This results from the nature of the case, and is also affirmed in the Constitution, which, in order to avoid all doubt or difficulty about the point immediately in controversy in the present instance, expressly provides that the acts of the General Government shall be the Supreme Law of the land, any thing in the Constitution or laws of any State to the contrary notwithstanding. But to say that a citizen, or any number of citizens, can annul or repeal the law of the land, is, we repeat, a manifest absurdity. Resist it they can, and in certain extreme cases may: but that they should annul or repeal it, is a thing not illegal or unconstitutional, but impossible and unimaginable. The repeal of a law is as much an exercise of legislative power as the enactment of it, and from its very nature cannot be performed, unless by some person or persons invested with that power, in other words, by the Government. To assert the contrary, is in substance to assert that the same person can be sovereign and subject, or in a free State, in and out of office, at one and the same time.

We have thus endeavored, by a few plain considerations, to show, first, that the doctrine of nullification is not only unsanctioned by the Constitution, but wholly impracticable, and that its results, if it could be carried into effect, would be of the most disastrous character: – secondly, that the only semblance of argument, by which the Vice-President attempts to sustain it in the document before us, is entirely without foundation. It follows from the view which we have taken of the subject, that the controversy respecting the origin of the Constitution, which has been often agitated in connexion with this question, is in a great measure foreign to it. Whether the General Government had its origin in the will of the State Governments, of the people of the States, or of the people of the United States is a point of no importance in the present inquiry, for those who admit that it is the real and rightful Government of the country. For those, if any such there be, who wish to establish the proposition that the Union is a confederacy of independent States, subject to no common Government, the question of the origin of the Constitution is an essential one, because it is in the circumstances attending it, that they must look for the proofs of their theory. But for those who believe that that instrument is a social compact, and the Government created by it a real Government, it is unnecessary, for the present purpose, to go beyond that fact, which proves, of itself, that its acts are the law of the land, and that in respect to them there is no middle course between obedience and rebellion.

As respects the origin of the Constitution, we will therefore merely remark, without enlarging on the subject, that we agree with the Vice-President in the opinion that it derives its authority from the States acting as distinct communities, and not from the aggregate mass of the people of the United States. The latter theory receives some countenance from the opening words of the preamble: —We the people of the United States; – but is obviously inconsistent with the facts attending the formation and adoption of the Constitution. Throughout the whole proceedings, the States appeared as distinct communities. Those States, which did not at first approve the Constitution, considered themselves and were considered by the other States as at liberty to remain without the pale, and actually did so remain for some years. This could not have happened if all the States had previously constituted one people, that is, one body politic. In that case the decision of the body, in whatever form it might have been collected, must have been obligatory upon all the members. Indeed, the preceding instrument of Union, commonly called the Old Confederation, expressly recognises the sovereignty and independence of the States, and describes the Union as a league. The Congress which assembled under this Confederation was not a General Government, but a meeting of delegates or ambassadors, in which each State had an equal vote, and which merely recommended to the States the adoption of certain measures, which being adopted by them and in that case only, obtained the character and force of laws. It is obviously impossible to reconcile this condition of things with the theory, that the States, at the period immediately preceding the adoption of the Constitution, constituted one people. We find accordingly, that President J. Q. Adams, who, in his late Fourth of July Oration, professes the doctrine that the acts of Union which preceded the declaration of Independence combined the States into one people, and that they never existed as separate sovereignties, treats the old Confederation as a temporary departure from the true political system of the country. In other words, he admits that the character of it is inconsistent with his theory. But this Confederation, whatever may be thought of its value, undoubtedly determined for the time being the actual relation of the parties to it. There is reason to suppose, from the tenor of another late publication by Mr. Adams, that he considers the union of Great Britain and Ireland as a departure from the true political system of those countries; but he would probably not think of maintaining, as a consequence of that opinion, that Ireland is at this moment an independent State. On our view of the subject, therefore, the States, from the period of the Declaration of Independence to that of the establishment of the Constitution, existed, in form at least, as distinct communities, independent of each other, and, though confederated for certain purposes, not subject to a common Government. The Constitution, by which they subjected themselves to a common Government, was the act which gave them the character of one people. The form of distinct communities, under which they existed during the period alluded to, may have been, as we agree with President Adams that it was, an unfortunate expression of the substantial condition of the population of this continent; but this is a question not of substance but of form, and such undoubtedly was, for the time being, the form of their political existence.

We are therefore disposed to agree with the Vice-President in the opinion, that the parties to the great social compact, entitled the Constitution, were not the individual citizens composing the whole people of the United States, but the several distinct communities into which they are divided, and which were at that time, – to use the ordinary language, – sovereign and independent States. We may remark en passant that the phrase Sovereign State, which certain persons employ so frequently and appear to consider as pregnant with important political conclusions, though it may, perhaps, be sufficiently authorized by usage to be received as good English, is not, in the strict and proper use of language, admissible, and is therefore better avoided in all precise and scientific discussion. The word sovereign has the same etymology with supreme, of which it is another form, and properly implies, as that does, comparison with something else. Thus the Supreme Being is the highest of all beings: the Supreme Court is the highest of all the Courts: the Sovereign power in a State is the highest political authority. But States, being as such politically independent of each other, cannot in the nature of things stand towards each other in the relation of superiority or inferiority, and can of course be neither sovereign nor subject. We find, accordingly, that in the Declaration of Independence, – a document remarkable throughout for great propriety in the use of language, – although it was once quoted by Governor Hamilton, on some public occasion, as saying that the United Colonies are, and of right ought to be, free, sovereign and independent States, the word sovereign is not employed. The language used is that the colonies are, and of right ought to be, free and independent States. As applied to States, the word sovereign, if it have any meaning at all, can only mean independent. In this sense it is no longer applicable to the several States composing the Union, which, since the adoption of a common Government, are not politically independent of each other. This is not a merely verbal criticism. Words are things; and we strongly suspect that the frequent use of this incorrect, ambiguous, and, – to recur again to the language of Governor Lumpkin, —mystical phrase Sovereign State, has created a good deal of embarrassment, which the substitution of the more correct and intelligible term independent would have in part prevented.

To return, however, from this digression: – although we agree with the Vice-President in the opinion, that the Constitution had its origin in the will of the States acting as distinct communities, we cannot acquiesce in the conclusions which he deduces from this fact, or admit that, for the present purpose, it makes any difference whatever in the case. Independent States may form themselves into a body politic, as well as independent individuals. Such is in fact the historical origin of most of the communities now existing throughout the world. They are in general aggregations of smaller communities, previously existing in an independent form. Where the States, so forming themselves into one body politic, retain for certain purposes a distinct name and character, their position in the body politic, of which they form a part, is precisely the same with that of the individual citizens in an ordinary community. This, as we have seen, is fully and distinctly admitted by Mr. Calhoun himself. He admits that the General Government is as fully and properly a Government as are the State Governments themselves, and that the relation between the General Government and the States is precisely the same with that between the Governments and citizens of the States, or in general between the Governments and citizens of any other community. How then can he possibly claim for the States a right of annulling the acts of the General Government, when he certainly would not think of claiming such a right for the citizens of the several States, or of any other political societies, in reference to their respective Governments?

It may be true, as Mr. Calhoun intimates, that a State Government has no right to enforce its construction of the Constitution of the State against the people of the State, appearing in their sovereign capacity; or, more generally, that in our theories of government the people of any country, acting in their sovereign capacity, have a right to construe, alter or totally destroy the Constitution at discretion. But supposing this to be true, would it follow that every individual citizen has a right to annul the Constitution, or any part of it, at discretion? Would Mr. Calhoun himself think of drawing such a conclusion, in reference to the individual citizens of the States, or of other communities? – Undoubtedly not. How then can he with the least regard for consistency draw it in reference to the individual States, which, as he tells us himself, stand in precisely the same relation to the General Government, in which the individual citizens of the States and of other communities stand in relation to their respective Governments?

The right claimed for the States of annulling the Constitution and laws of the United States, must, says the Vice-President, belong to them, unless they have expressly surrendered or transferred it. We have already seen, that no member of a body politic, whether composed of States or individuals, does or can possess a right to annul or repeal the law; and that the contrary proposition involves a contradiction in terms. Were the Constitution wholly silent on the subject, the mere fact that they had formed themselves, by a solemn social compact, into one great people, subject to a common Government, though retaining, as distinct communities, no inconsiderable share of the legislative power, – this fact alone, we say, would have carried with it a peremptory obligation upon the States to obey the law as construed by the courts of justice, excepting in the extreme cases that justify resistance. It would, however, be natural enough for independent States, in forming a compact of this description, to introduce an expression of this obligation; and it may be a matter of curiosity to consider for a moment what language could have been used, in order to express the idea in the most direct and unequivocal manner. To one who was seeking for such an expression, some such phrase as the following would probably occur. No State shall have a right, either in the exercise of the sovereign (constitution-making) or the ordinary legislative (law-making) power, to annul or arrest the execution of this Constitution, or any law made in pursuance of it by the General Government. This, we say, or something like it would probably be the language, which would occur to any one who was seeking for the most direct and unequivocal expression of the idea, that the States have no right to set up their authority against that of the General Government. Now the language of the Constitution on this subject is still more decisive, because it expresses the same ideas conveyed by that here supposed in two forms, the one positive and the other negative. This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land. This positive declaration carries with it, as we have said, by implication, the full import of the negative one which we have supposed above: but in order to make assurance doubly sure, the framers of the Constitution added a negative declaration, which, though more concise than the one we have supposed, is of precisely the same meaning; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding. This declaration, we repeat, though more concise, is equivalent in meaning to the more extended expression of the same idea, which we have imagined as the most direct and unequivocal that could possibly be used. —Any thing in the laws of any State to the contrary notwithstanding.– No State, in the exercise of its ordinary law-making power, shall have a right to annul or arrest the execution of this Constitution, or the laws made in pursuance thereof by the United States. Any thing in the Constitution of any State to the contrary notwithstanding.– No State, in the exercise of her sovereign or constitution-making power; no State, acting in her sovereign capacity, shall have a right to annul or arrest the execution of this Constitution, or the laws made in pursuance thereof by the United States. Any act that may be done for this purpose is to be, ipso facto, null and void. The judges shall not be bound by it. Will the Vice-President or any person of plain common sense undertake to say, that this is not a correct paraphrase of the negative clause in the Constitution? If it be admitted that it is, will the Vice-President or any man of plain common sense undertake to say, that if the framers of the Constitution had employed the language of this paraphrase instead of the concise equivalent phrase which they used, there could be any doubt respecting the character of the present proceedings in Carolina? There is, in fact, no doubt about it.