Strictures on Nullification

by Alexander Hill Everett

A State having nullified an act of the General Government, it then becomes the duty of the General Government to abandon the power (of passing such an act), and to apply to the States, in the form of proposing an amendment of the Constitution, for the grant of such a power. Let us see how far these duties are practicable.

The General Government consists of three branches, the Executive, the Legislative, and the Judiciary, to each of which its peculiar and appropriate functions are assigned by the Constitution and the laws. What then is meant, when it is said that it becomes the duty of the General Government to abandon the power to pass a certain act, at least within the limits of a particular State? Is it meant that the Legislative department of the General Government is bound to repeal the obnoxious law, as respects that State or the Union at large? This is obviously impossible, because by the supposition the majority of the Legislature believe the act to be constitutional and expedient,—and therefore cannot conscientiously, in the ordinary exercise of the Legislative power, repeal it.

Is it meant, that the Executive and Judiciary departments of the General Government shall suspend the execution of the law within the limits of the State in question? This again is equally impossible. The functions of the Executive and Judiciary departments are entirely administrative. The persons entrusted with them have no discretionary power. They are bound by their oaths of office to execute the laws that are given to them by the Legislature, and have no more right to augment or diminish them by one jot or tittle, than they have to declare themselves dictators of the country. The abandonment by the General Government of the power to pass the act complained of by the nullifying State is therefore a thing in itself entirely impracticable. Even the omnipotent Parliament of England, which, according to Lord Coke, can do any thing but convert a man into a woman, could not repeal a law which was sustained by a majority of its members; nor could even the hereditary executive power of England or any other constitutional monarchy suspend for a moment the execution of a law, which is still in force. The thing is in its nature a moral impossibility.

So much for the first part of the two-fold duty, which, according to the Vice-President, devolves upon the General Government, in the event of the nullification by a State of a law of the United States. But the General Government is not only bound to abandon the disputed power, but also to apply to the States, in the form provided for amending the Constitution, for a grant of that power. We have seen that the first of these supposed duties is in its nature impracticable. It is obvious to the slightest reflection, that the other is not less so. By the General Government the Vice-President must of course intend, in this connexion, the Legislative department of the Government, the Executive, as such, having nothing to do with the process of amendment. Now, independently of the objection to which we have already adverted, viz. that the Constitution imposes no such duty on the Legislature, it is plain that the operation is in itself impracticable, for the same reason which would prevent the repeal of the obnoxious act. The Legislature cannot recommend an amendment of the Constitution, giving to itself the power to pass such an act, for the plain reason, that by the supposition a majority of the members believe that the Legislature already possess the power, and that it is consequently impracticable for them to adopt, on their official responsibility, a measure which implies that they believe the contrary.

It is only necessary to consider for a moment how the plan would work in detail, in order to be convinced that it is utterly impracticable. It becomes the duty of the General Government, by which we will suppose the Vice-President to mean the Legislature, to apply to the States for a grant of the disputed power. But what is the Legislature? The Legislature is a complex being, composed of the President and two elective assemblies, comprehending two hundred and eighty-five persons. It is the duty, it seems, of these two hundred and eighty-five persons, in their political capacity, to apply to the States for a grant of new powers. But who is to move? What is the business of every body is the business of nobody. Shall it be the President? The Constitution makes it the duty of the President to recommend from time to time to the consideration of Congress such measures, as he shall judge necessary and expedient. But the President, by the supposition, believes that the General Government already possess the power in question. It is impossible, therefore, that he should recommend to Congress to propose an amendment conferring this power. For the same reason, the proposition cannot be made in Congress by a member of the majority of either House. The duty, such as it is, of making the proposition, might no doubt be performed by some member of the minority of one of the two branches. But how are the majority to vote for a proposition which they do not approve? How is the President to approve a law which he does not approve? Individuals occasionally support or oppose measures for particular reasons, which have no reference to their own opinion upon their merits; but in arguing on general principles, it must of course be assumed that the members of the Government can only act on principle. The operation supposed is therefore in its nature essentially impracticable.

Indeed the supposition that it can in any case be the duty of one or more individuals to do an act which, if done by them at all, must be done in pursuance of their own free and unbiased belief in its expediency, is so obviously incongruous, that we really wonder how an acute logician, as the Vice-President unquestionably is, could have been led by any prepossession or political hallucination to admit it for a moment. If it be really the duty, under the Constitution, of the Legislature or of any branch or member of it to perform a particular act, there is no room for the exercise of discretion. The thing must be done. Thus it is the duty of the House to choose their speaker and other officers. This is accordingly done at the opening of every new Congress, as a matter of course, and it would be unconstitutional even to debate upon the propriety of so doing. But a proposition to amend the Constitution or any act performed in the ordinary exercise of the Legislative power, must be, from its nature, the result of the free and conscientious judgment of the President and a majority of the two Houses of Congress upon its merits; and it is impossible that it can be their duty, in any case, to decide in favor of a particular measure without reference to its merits, when their own free and conscientious judgment upon its merits is the precise and only rule which they are bound to follow, in the decision of every question that is brought before them.

The process of nullification is therefore, in its most important points, absolutely impracticable. This being the case, any consideration of its constitutionality or expediency is superfluous. It is unnecessary to inquire whether a plan, which cannot in the nature of things be carried into execution, would or would not be constitutional or expedient if it could. But the respect which we sincerely entertain for the talents and character of many of the citizens who are engaged in this project, seems to render it proper that it should be viewed under all its different aspects. Let us therefore suppose, for the sake of argument, that the project is practicable, and look at it in reference to its expediency. Passing over as before the first step in the process, the effect of which is less certain because the precise form in which it will be taken is not yet known, let us as before proceed at once to the second, and inquire how it will operate in the case immediately in question.

Let us suppose, then, that the State of South Carolina annuls the Tariff. On the theory of the Vice-President, it will then become the duty of the General Government to refrain from enforcing the Tariff within the limits of South Carolina, and to apply to the States for a grant of power to pass laws for the protection of domestic industry. We have shown that both parts of this duty are wholly impracticable; but let us imagine that they could be performed, and see what would be the result. Let us suppose that the General Government, at the present session of Congress, in defiance of their own opinion of the constitutionality and expediency of the Protecting Policy and of the express provision of the Constitution that all duties, imposts and excises shall be uniform throughout the United States, suspend the execution of the Tariff law within the limits of South Carolina.—Let us also suppose that the General Government, conscientiously believing, as they do, that they possess the power to pass laws for the protection of domestic industry, shall yet assure the people that they believe they do not possess it, and recommend an amendment of the Constitution which shall give it to them. What will be the result?

The suspension of the Tariff law, within the limits of South Carolina, would of course render the ports of that State entirely free. As soon as this fact became generally known at home and abroad, the whole foreign commerce of the country would centre in these ports, and the receipts of the custom-houses, which constitute nearly the whole revenue of the country, would be reduced at once to nothing. In the mean time, the process of amending the Constitution is notoriously a very slow one. We have supposed that the General Government, at the same session of Congress, at which they suspend the execution of the Tariff law in Carolina, propose to the States to adopt the amendment in question. The recommendation goes out to the Governors of the States, and is laid by them before their several Legislatures, as they come into session at various times in the course of the following year. Some of these Legislatures act upon it at once; some lay it on their tables never to take it up again; others refer it, as they habitually do all questions of an embarrassing description, to their next following session. In this way the affair drags along for a number of years, and it is even very doubtful whether any returns at all would ever be received from half the States. Let us suppose, however, that in process of time, say in five years from the date of the proposal by the General Government, returns are received from all the States, and let it be granted for argument's sake, that the proposed amendment is not sanctioned by the number of States necessary under the Constitution to give it effect, which is three-fourths of the whole:—this is the supposition most favorable to the views of the Vice-President. What follows? Is the great object of settling the construction of the Constitution attained? Quite the contrary. Not a single step has been yet taken towards the attainment of it. The refusal of the States to sanction the proposed amendment, far from proving that the General Government does not, according to their construction of the Constitution, possess the disputed power, might be, and in many cases undoubtedly would be, the result of their belief that the General Government already possesses it. How, for example, could Pennsylvania, where the Legislature unanimously believe that the General Government possesses the power to protect domestic industry, sanction the proposal of an amendment intended to confer that power? The refusal of the States to sanction the amendment would therefore prove nothing at all as to their opinion upon the meaning of the Constitution, and would leave the whole subject exactly as it stood before. The Vice-President tells us, it is true, that if the proposed amendment were not sanctioned by the requisite number of States, no alternative would remain for the General Government, but the permanent abandonment of the disputed power. But, with all due deference to the judgment of Mr. Calhoun, we must be permitted to say that this is a conclusion entirely without premises, or, in less technical language, a naked assertion without proof, and we may add without even the appearance of plausibility. If the States refuse to amend the Constitution, it remains of course as it was before; and it is the duty of the General Government, as it was before, to act upon their own construction of its meaning, which is, by the supposition, in favor of the reality of the contested power. As honest men, acting on their official responsibility, they cannot possibly do otherwise; they would be obliged to re-enact the law which, by the supposition, had been repealed in reference to the nullifying State, and things would proceed exactly as they did before. At the end of the process, therefore,—supposing it even to result in the manner most favorable to the Vice-President's view,—the whole subject would remain precisely as it stood at the beginning. The affair would afford a new example of what a foreign writer has called the system of All Action and No Go.

In the mean time, what would have been the state of the country during the five years which have been devoted to this tedious, complicated and ineffectual attempt to settle the construction of the Constitution? The revenue would have declined almost to nothing, and there would have been of course an annual deficit of nearly the whole amount necessary to defray the expenses of the Government, and pay the interest and principal of the debt. How would this have been covered? The ordinary resource in cases of deficit is a loan, but it may well be doubted whether, under the circumstances supposed, the credit of the Government would be particularly good. If loans could be obtained, which is the most favorable supposition, we should be saddled with a debt of about a hundred millions, probably at exorbitant interest, as the cost of this political experiment. Were this the only inconvenience, most judicious citizens would be disposed to say, with the Grecian philosopher who was offered, at a pretty high price, the favors of a frail beauty of some celebrity,—that they did not choose to buy repentance so dear. But this debt of a hundred millions would be the least part of the mischief. The importation of foreign goods free of duty for five years would of course destroy all our domestic manufactures, and ruin that part of our population which is employed in them. The value of the manufactures annually produced in this country is estimated by Mr. Gallatin at about $150,000,000,—probably a very low computation. Supposing the ordinary rate of profit in this branch of industry to be at from six to seven per cent., this amount of annual products represents a capital of a thousand million dollars, which would be swept at once into nothing. This is another trifling item to be added to the cost and charges of nullification. Omitting all consideration of the effect upon the happiness of the six or seven hundred thousand persons who depend for subsistence upon these manufactures, and looking merely at the financial results, we must needs say that this is a most expensive, as well as in our opinion unsatisfactory, mode of expounding the Constitution. And these, as we have said, are the results of the process on the most favorable supposition; for if loans could not be obtained, which is a more probable one, the immediate consequence would be a national bankruptcy, which would of course be followed instantaneously by domestic convulsions, a complete breaking up of the Government, and a dissolution of the Union.