Strictures on Nullification

In our Constitution, the idea of representing different interests in the machinery for making the law, has been retained in favor of the States. These, independently of their representation on the principle of the numerical amount of their population in the House of Representatives, have a distinct representation on a footing of perfect equality in the Senate. A bill, which has obtained the sanction of the two Houses of Congress, has ipso facto been approved by a representation of the absolute majority of the whole people of the Union, and of what the Vice-President is pleased to call the concurring majority, that is, a majority of the representatives of the States, considered as distinct communities. The arrangement is one, which the Vice-President, reasoning consistently upon his own theory, ought to consider as perfect. But this does not satisfy him. Not content with obtaining for each of and all the States a full representation, on the principle both of the absolute and concurring majorities, – the very thing which he professes to wish for, – he insists that each shall have in addition for itself a right to break the law, which it has itself concurred in making: – that each State, after co-operating by its presence in imposing upon the other States the obligations resulting from a law, has a right to exempt itself by its own separate act from bearing its own share of these burdens; and, – as the rights of all the States in this respect are of course the same, – that the law, which is in form binding upon every body, is in fact and in reality binding upon nobody, since each of the parties supposed to be bound by it possesses individually a right to break it. – A right to break the law!

This is really too extravagant, and were it not for the respect which we have heretofore been disposed to entertain for the talents and character of Mr. Calhoun, we should find some difficulty in believing that he can be honest in expressing such opinions. The case furnishes a very strong example of the extent, to which party feeling and disappointed personal ambition can bewilder the conceptions of a naturally acute and powerful mind. If the Vice-President will review his principles, with only a small portion of the sagacity and correctness of judgment which he could bring to any other subject, he will see at once that the right which he claims for the States, is not that of being represented as distinct interests in the making of the law, (which they are by the Constitution) but that of resisting the execution of it, when made; and that the proceedings in which he is engaged, whether justifiable or not, are essentially revolutionary.

The Vice-President indulges in another course of remarks of considerable extent, which, though not directly applicable to the leading points of the argument, are of too serious a cast to be passed over without notice. He undertakes to show, that the Government of the Union would not be authorized to employ force against a State which should annul one of their acts; and, anticipating the objection that nullification is equivalent to a secession from the Union, which would place the seceding State in the attitude of a foreign one, he proceeds to reply to it by pointing out what he considers the distinction between nullification and secession. Secession is the actual retirement of one of the partners to a common concern; nullification is the refusal of the same partner to be bound by an act of the common agent. The object of the former is to dissolve the partnership, – of the latter, to confine it to its proper object. The right to secede, that is, to avoid the obligation of all the acts of the partnership, supposes the right to nullify, that is, to avoid the obligation of one: and there is therefore an obvious inconsistency in the theory of those, who, as the Vice-President tells us is the case with many persons, admit the former and deny the latter. For himself, he liberally concedes both: a State, according to him, has a right at discretion either to exempt itself by its own act from the obligation to obey any particular act of the General Government, or to nullify the whole, Constitution and all, at one fell swoop, and secede entirely from the Union.

Presented in this crude, unsophisticated and unqualified shape, the system of the Vice-President becomes almost ludicrous; but when we recollect the respectability of the quarter from which it proceeds, and the serious aspect which the practice upon it is assuming at the South, a painful feeling irresistibly predominates. Did Mr. Calhoun, when he was entering on these forbidden speculations, recollect the impressive language in which the Father of his country, forty years ago, pointed out their danger? 'It is of infinite moment, that you should properly estimate the value of your national Union to your collective and individual happiness; that you should cherish a cordial, habitual and immoveable attachment to it; accustoming yourselves to think and speak of it as the palladium of your political safety and prosperity; discountenancing whatever may suggest even a suspicion that it can in any event he abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together its various parts.' Is it discountenancing whatever may suggest even a suspicion that the Union can in any event be abandoned, to affirm explicitly and without qualification, that every State has a right at its own discretion to secede from the Union? Is it frowning indignantly upon the first dawning of every attempt to enfeeble the sacred ties which link together the United States, to maintain that these links are a mere cobweb, which any one of the States has a right to break through or shake off at its own discretion? Is this a fit and proper lesson to come from the high places of the Federal Government, from the second in rank of the citizens who have been selected from the whole country, as the immediate executors of the great charter of the Union? We agree with Mr. Calhoun, that of the two heresies to which he alludes, the greater includes and supposes the less: – that it would be inconsistent for any one, who admits the right of nullifying at once, by secession, the Constitution and all the laws, to deny the right of nullifying one; but we utterly deny that either can be reconciled with the letter or spirit of the Constitution. The social compact, – like the contract of marriage, – is one in which the parties take each other for better or worse, for sickness or health, for life and for death. It is one from which they have no right to retire at discretion. They can have no right, as States or individuals, to avoid, either wholly or in part, the obligations of this compact, and the laws made under it, for the plain and unanswerable reason, that this compact and the laws made under it are the rule which determines for them what is right, and that opposition to the rule of right must of course be wrong. Extreme cases may undoubtedly occur, in which the obligation may, either wholly or in part, be innocently avoided; but they cannot, from the nature of the subject, be either contemplated in or reconciled with the law. The patriot shrinks from dwelling upon the circumstances under which they would happen, as he would from imagining a case, that should justify him in lifting his hand against his own father. His heart sickens at the thought that any such contingency can possibly occur. If forced to meet it, he makes no vain attempt to reconcile his conduct with the rule which he violates; no pretension to obey and break the law at one and the same time: – he boldly avows that his act is unconstitutional, and appeals for its justification to the Supreme Governor of the Universe, who has engraved upon the heart of man a law which, in some extreme cases, he is permitted to regard as paramount to every other.

We have now finished what we thought it necessary to say in the way of direct commentary upon Mr. Calhoun's exposition. On the leading points of the question, we have argued chiefly from his admission, which is made in the fullest and most explicit manner, that the United States are under a common Government, holding the same relation towards them that the Governments of the several States and all others hold to the communities over which they are respectively established. From the fact thus admitted, it follows, of necessity, as we have repeatedly remarked, that the Constitution is not a league or treaty, but a social compact, and that the Union is not a cluster of twenty-four independent States, but one body politic composed of twenty-four members, – each exercising a certain portion of the legislative or sovereign power, but having no pretension to independence. If this admission had been made unguardedly by Mr. Calhoun, and were not assented to by other champions of the same creed, it would be unfair to take advantage of it in the argument; but this is not the case. This exposition by the Vice-President is recognised by the nullifiers as the most authentic statement that has yet appeared of their sentiments, and is constantly referred to as the standard and symbol of the true nullifying faith. Other writers of high authority on the same subject hold the same language with the Vice-President, particularly the authors of the addresses issued by the late Columbia Convention. The Report, attributed to Mr. McDuffie, declares that 'the States entered into a solemn compact with each other, by which they established a General Government,' and quotes in support of his position the remark of Mr. Jefferson, that the States, by a compact, under the style and title of the Constitution of the United States, constituted a General Government. In like manner Mr. Turnbull, in his address to the people of South Carolina, tells them that 'the Constitution of the United States is admitted by contemporaneous writers to be a compact between (formed by) sovereign States, and that the subject matter (object) of that compact was a Government.' Finally, General Hayne, in the address to the people of the United States, remarks that the 'Constitution is a compact formed between the several States, acting as distinct communities, and that the Government created by it is a joint agency of the States.' They all pursue the same line of reasoning with the Vice-President, frequently quote his language, and evidently consider his writings as the creed of the party.

So far, indeed, is the admission to which we have alluded from being made by the Vice-President unguardedly or unintentionally, that in other parts of his exposition he in fact goes by necessary implication a great deal farther. He not only recognises the existence of a common Government, and consequently of one body politic, but lays it down as one of the leading points of his doctrine, that this body politic has unlimited power over its members, the States. Strange as it may appear to readers who have not looked attentively at the subject, it is actually one of the leading articles of the nullification creed, as expounded by the Vice-President in the document before us, that the United States are a body politic, possessing under the Constitution unlimited power over all its members. A State nullifies an act of the General Government; the General Government is then bound to apply to the States for a grant of the disputed power, in the form prescribed for amending the Constitution. – If three-fourths of the States grant the power, – what follows? The nullifying State is bound to acquiesce. 'If granted,' says the Vice-President, 'acquiescence would then become a duty on the part of the State.' No matter how large the concession, – no matter how important the alteration made in the character of our institutions, – should the General Government even claim a right to exercise all the powers of an unlimited military despotism, let but the change be proposed and carried through in the form of an amendment of the Constitution, and the individual States are bound to acquiesce!

And yet these States, who have not only formed themselves into one body politic under a common Government, to which they have delegated the most important powers that are exercised by other Governments, but who have bound themselves to each other to acquiesce in any extension of these powers that may be agreed upon by three-fourths of the number, remain nevertheless as completely sovereign and independent, since the conclusion of the compact containing these provisions, as they were before!

In what way the characters of sovereignty and independence are to be reconciled with the obligation, not only to obey a Government possessing certain specified powers, but to acquiesce in any extension of these powers that may be agreed upon by certain other parties, without the consent of the supposed sovereign and independent State, neither the Vice-President, nor Gov. Hamilton, nor Gen. Hayne, nor Mr. McDuffie, nor Mr. Turnbull, nor any other writer on the subject of nullification has condescended to inform us. They all freely admit, that the States are bound in ordinary cases to obey the laws made by the General Government: – that even in the particular cases where they have a right to nullify these laws, they are bound to submit to the decision of three-fourths of the States; and that in general they are bound to acquiesce in any extension of the powers of the General Government, that may be agreed upon without or against their consent by three-fourths of the States; but still maintain with one voice and an air of honest wonder that any body can differ from them, that each State is still, to all intents and purposes, as completely sovereign and independent, as before the adoption of the Constitution. 'The several States,' says the Report of the Columbia Convention, 'retain their sovereignty unimpaired.' 'The States are as sovereign now,' says the address to the people of Carolina, 'as they were prior to entering into the compact.' It is admitted that 'a foreign or inattentive reader, (Qu: Is Mr. Turnbull a native citizen?) unacquainted with the origin, progress and history of the Constitution, would be very apt, from the phraseology of the instrument, (a pretty good ground, one would think, for argument upon its meaning) to regard the States as having divested themselves of their sovereignty, and to have become (regard to have become, is not good English, Mr. Turnbull) great corporations, subordinate to one Supreme Government.' 'But this,' it seems, 'is (would be) an error.' 'The Federal Constitution is a treaty, a confederation, an alliance,' the parties to which are 'so many sovereign States.' General Hayne, in like manner, describes the States, in the address to the people, as 'the sovereign States of the confederacy.' 'The Constitution,' says the Vice-President in the exposition before us, 'is as strictly and as purely a confederation, as the one which it superseded.' 'The case of a treaty between sovereigns is strictly analogous to it.' 'At the bottom of almost every misconception as to the relation between the States and the General Government, lurks the radical error that the latter is a national, and not, as in reality it is, a confederated Government.'

In other times, when other doctrines were fashionable in South Carolina, we were told by one of her distinguished statesmen of a very different radical error, which was lurking at the bottom of a doctrine which he then thought it his duty to oppose. 'The States, as political bodies,' – said Mr. McDuffie in his well-known pamphlet, The Trio, published about ten years ago, – 'the States, as political bodies, have no original inherent rights. That they have such rights, is a false, dangerous and anti-republican assumption, which lurks at the bottom of all the reasoning in favor of State rights.' – Is there not room to apprehend that the error, which really lurks at the bottom in both these cases, is not precisely the one alluded to by either of these distinguished statesmen, but another which was also signalised by Mr. McDuffie on the same occasion and in the same pamphlet? 'Ambitious men of inferior talents, finding that they have no hope to be distinguished in the councils of the national Government, naturally wish to increase the power and consequence of the State Governments, the theatres in which they expect to acquire distinction. It is not, therefore, a regard for the rights of the people, and a real apprehension that those rights are in danger, that have caused so much to be said on the subject of prostrate State sovereignties and consolidated empire. It is the ambition of that class of politicians who expect to figure only in the State Councils, and of those States who are too proud to acknowledge any superior.'

This quotation was too provokingly apposite to be omitted; but we frankly own that the question preceding it must, in reference to the present case, be answered in the negative. The leading nullifiers, though sufficiently ambitious, are not men 'of inferior talents, who can have no hope of distinguishing themselves in the councils of the national Government.' They possess talents of a high order, and had already reached the most elevated stations in the National Government, before their judgments, previously sound and acute, had given way to the strange delusion which has now got possession of them. It is therefore necessary to look for the motives of their present proceedings in other quarters. Perhaps we may find them pretty satisfactorily accounted for, in the following passage of the same publication by Mr. McDuffie. 'He must have read the lessons of history to little purpose, who does not perceive that the people of particular States are liable to fall occasionally into a dangerous and morbid excitement upon particular subjects; and that, under this excitement, they will impel their rulers into the adoption of measures in their tendency destructive to the Union.'

But without undertaking to scrutinize the motives of the leading statesmen of South Carolina, we repeat that none of them have yet condescended to inform us, how they reconcile their admissions as to the authority of the General Government in ordinary cases, and that of the United States under the amending clause, with their doctrine of 'unimpaired sovereignty.' Mr. Calhoun, in the document before us, appears to be aware of the difficulty, but does not meet it in the full and frank manner which we had a right to expect from a man of his character. He takes refuge in vague and indefinite forms of language. 'Previous to the adoption of the present Constitution,' says he, 'no power could be exercised over any State, by any other or all of the States, without its own consent.' In other words, the States were then independent of each other, and, in the common phrase, sovereign. How are they now? – 'The present Constitution,' continues Mr. Calhoun, 'has made in this particular a most important modification in their condition. I allude to the provision which gives validity to amendments of the Constitution, when ratified by three-fourths of the States, a provision which has not attracted as much attention as its importance deserves.'1 It appears, then, that although the sovereignty of the States is unimpaired, their condition in this particular has undergone a most important modification. Now the long word modification, though it be, like Bardolph's accommodated, 'a soldier-like word, and a word of exceeding good command,' means, with all its six syllables, neither more nor less than the old-fashioned English monosyllable change. —Modification, says Johnson, is the act of modifying; and to modify is to change. It seems, then, that the condition of the States has undergone in this particular a most important change. It is no longer what it was. But they were before independent: of course they are now not independent. Such appears to be the plain English of the vague term modification.

But to what extent has this modification been carried? Before the adoption of the Constitution no power could be exercised over a State without its own consent. Now, by the admission of Mr. Calhoun, the United States can exercise unlimited power over a State without its own consent. This is indeed a most important modification of the sovereignty of the State. Such, however, is the virtue of this valuable word, that it prevents all the effect that would otherwise ensue to the sovereignty of the State from the change signified by it. 'To understand correctly the nature of this concession, (the modification is after all a concession,) we must not confound it with the power conferred upon the General Government, and to be exercised by it as the joint agent of the States. They are essentially different. The former is in fact but a modification of the original sovereign power, residing in the people of the several States.' It seems, then, that this most important modification is in fact a modification. 'Accommodated is when a man is, as they say, accommodated, or when a man is being – whereby he may be thought to be accommodated.' 'But,' continues the Vice-President, 'the original sovereign power residing in the people of the several States, though modified, is not delegated. It still resides in the States, and is still to be exercised by them, and not by the Government.' He had just told us, that the condition of the several States had undergone in this particular a most important modification, by the concession of power made in the provision for amending the Constitution: – now there is no delegation, – no concession, – the sovereignty is modified, but the condition of the State remains as it was before. Did the Vice-President himself understand exactly what he meant to say?

'It still resides in the States, and is to be exercised by them, and not by the Government.' How is this? – Before the adoption of the Constitution, the whole political power of each State resided in the State: now, a large portion of it has been transferred, by the provision for amending the Constitution, to the United States. How then can it be said, that the whole still resides in the State? Of what consequence is it whether the power has been conceded to the General Government, or to the United States? Provided it be gone from the State, it is obvious that the sovereignty of the State is equally impaired, whether it now belongs to one or the other. The point which Mr. Calhoun wishes to make out is, that each State now possesses all the political power which it possessed before the adoption of the Constitution. It is admitted that a large concession has been made. But, says Mr. Calhoun, the power thus granted has been granted to the United States, and not to the General Government, – therefore, it still remains in the possession of the granting State! The owner of a tract of land conveys away a part of it for a valuable consideration; but the sale being made to B. and not to C., it follows, says Mr. Calhoun, that the whole remains in possession of A.

If arguments like these were found in a document purporting to be a mere specimen of forensic ingenuity, or in the speech of a legal advocate who might be supposed to defend his client, whether he thought his case a good one or not, we should conclude, at once, that the person employing them had, from a consciousness of the weakness of his cause, resorted expressly to ambiguous language, and loose sophistical reasoning. But the document before us is of a very different character and consequence. The subject which it treats is a great practical question. The author, – no less a person than the Vice-President of the United States, – has placed himself at the head of an enterprise, which, according to the degree of purity and singleness of heart with which he engages in it, must be regarded as in him the noblest exercise of patriotism, or the highest offence known to the law. Such is the individual, whom we find under such circumstances resorting for his justification to a sort of language, which, in ordinary cases, would be received as the obvious resource and undoubted evidence of insincerity. We shrink from characterizing such a course in the way which appears most natural, and gladly avail ourselves of the pointed and fearless denunciation of Mr. McDuffie.