Strictures on Nullification

by Alexander Hill Everett

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.

It is painful to see a person so distinguished for talent, and, as we have hitherto been willing to believe, for uprightness of purpose, as Mr. Calhoun is, attempting to escape by a side path from the plain and obvious meaning of this clause, which he shrinks from meeting in the face. He alludes to several propositions that had previously been submitted to the Convention which framed the Constitution, for the purpose of making the acts of the General Government paramount to those of the States; and because these were rejected, he concludes, that the one which was adopted is not to be carried into effect according to its plain and natural sense. Is this fair argument? Is it even plausible? It is impossible, within the narrow compass of an article, to go fully into every part of this vast subject; but any one, who will take the trouble to examine the proceedings of the Convention, will readily see why they rejected the first propositions, and why they adopted the last. As the States retain a very considerable portion of the legislative power, and remain, for many purposes, distinct communities, it was thought important that, in regard to the exercise of the powers so retained, they should not be under the formal control of the General Government:—in other words, that so far as they were sovereign, they should not be subject. Hence the rejection of the proposal of General Hamilton to give the President a negative on all State laws; and hence subsequently the amendment of the Constitution, by which it was ordained that no State should be sued at law. This was all perfectly proper: but it was also essential that the paramount authority of the acts of the General Government should be secured, and the object was attained by the proposition finally adopted, which declares distinctly, both in a positive and negative form, that such is the understanding of the Convention, and leaves it to the Courts of Justice to enforce the provision. This plan is just as effectual as the other would have been, because the decisions of the courts may and must be sustained, if the occasion require it, by the whole military force of the country; while at the same time it removes the possibility of any actual collision between the two law-giving powers, in the regular performance of their functions. Each exercises a complete and uncontrolled discretion as to the objects and extent of its own legislation;—puts its own construction upon its own powers;—passes, in short, any laws which it deems constitutional and expedient. Neither, in this form of action, has any control over the proceedings of the other.—The General Government has no more right to annul an act of the State of South Carolina, than the State of South Carolina has to annul an act of the General Government. But when the proceedings of the two powers come into collision,—as it may well be supposed that, under such circumstances, they occasionally will,—the silent operation of the Courts of Justice gives the ascendancy, where the Constitution declares that it belongs, to those of the General Government. The provision, like most others in the Constitution, is obviously the simplest and best that could have been adopted. The rejection of other propositions of similar tendency only proves that the Convention considered the subject very maturely, and successively laid aside the several imperfect and inexpedient methods of effecting the great object in question, which were proposed to them, until they finally hit upon one that was satisfactory.

In alluding to this decisive clause in the Constitution, the Vice-President omits entirely the negative part of it, and quotes it in the following form:—This Constitution and the laws made in pursuance thereof shall be the supreme law of the land. He then adds that he shall not go into a minute examination of its effect, the subject having been already so frequently and so ably investigated, that he deems it unnecessary. This might have been a good reason for not discussing it at all; but if it was expedient to discuss it at all, it seems hardly proper that the most material point in the argument should be passed over in silence. The omission looks very much like conscious weakness. For ourselves, we have met with no suggestion, whether made on this or any former occasion, which, according to our views, has thrown even the shadow of a doubt upon the meaning of the passage. The pretext for a question would probably be sought in the qualification, made in pursuance of the Constitution. It may be said that, under this qualification, laws not made in pursuance of the Constitution are not paramount to those of the States. But this phrase has obviously no bearing on the point in question. The meaning is, that the Constitution and the laws of the United States, made in the manner prescribed by it, or for the purpose of carrying it into effect, shall be the paramount law of the land, just as in the other part of the phrase it is said, that treaties made under the authority of the United States shall also form a part of this paramount law. In both cases, there is no reference to the question, whether the law or the treaty has been made in a rightful or wrongful exercise of the legislative or treaty-making power. It is merely affirmed that the acts of the General Government, performed in the exercise of their powers under the Constitution, are paramount to those of the States. The same language is used in the Ordinance of Nullification, which declares that 'this Ordinance and the laws made in pursuance thereof by the legislative power of the State, shall be binding on the citizens.' It is obviously not intended, that the citizen shall judge for himself whether the laws so made are or are not agreeable to the tenor of the Ordinance, but merely that the laws which the assembly,—acting under this Ordinance or in consequence of the recommendation contained in this Ordinance,—may pass, shall be obligatory.

This qualification, which has sometimes, we believe, been regarded as very significant, has therefore no bearing on the point in question, nor is it, as Mr. Calhoun imagines, by the clause conferring on the Supreme Court the power of deciding in all cases arising under the Constitution, that the States are supposed to be deprived of their right of putting their own construction upon the powers of the General Government. The right of deciding on the constitutionality of the laws of the United States, belongs, from the nature of the case, to the courts, and is expressly given to the Supreme Court by the Constitution; but the possession of this right by the courts does not carry with it that of deciding, that an act of the General Government is of paramount authority to one of a State. On this subject, we are quite surprised at the looseness of the Vice-President's reasoning, and its apparent inconsistency with the general scope of his doctrine. 'Where there are two sets of rules,' he remarks, 'prescribed in reference to the same subject, one by a higher and the other by an inferior authority, the judicial tribunal called on to decide the case, must unavoidably determine, should they conflict, which is the law; and that necessarily compels it to decide that the rule prescribed by the inferior power, if, in its opinion, inconsistent with that of the higher, is void.'—This doctrine is strange indeed in the mouth of the Prince of nullifiers and great champion of State Sovereignty. Where, we would ask, has the Vice-President learned that the State Governments are inferior and the General Government a superior power?—We must inform him, that without being nullifiers, and without believing in the doctrine of State Sovereignty, we make no such admission for Massachusetts. The State and General Governments, each of which exercises, independently of the other, a portion of the sovereign or legislative power of the people, are neither superior nor inferior to each other: they are precisely on a level. The right of deciding on the constitutionality of the acts of the General Government would no more of itself authorize the judges to decide that they are paramount to those of the States, than it would authorize them to decide that the acts of the States are paramount to those of the General Government. The two Governments, considered as distinct legislative powers, are on a footing of perfect equality. The question, which shall prevail when their acts come into collision, must be decided by the nature of the case, and by the specific provisions of the Constitution. It follows, from the nature of the case, that the acts of the General Government, which represents the body politic of which all the States are members, must have an authority paramount to any other existing in the community; and this conclusion is confirmed by the letter of the Constitution, which expressly declares, in so many words, that the acts of the General Government are paramount to those of the States. It was by forming themselves into one body politic, and by expressly stipulating with each other in the compact by which this body politic was formed, that the acts of the General Government representing it should be paramount to their own, that the States surrendered the right of putting their own construction on the powers of the General Government; and this is the foundation of the authority possessed by the judges, when, by virtue of a different clause, they take cognisance of cases arising under the Constitution, to decide, as they undoubtedly must and would do, that any act of a State, whether in its sovereign or legislative capacity, pretending to annul an act of the General Government, is of itself, ipso facto, null and void.

Finally, says the Vice-President, 'it belongs to the authority which imposes an obligation, to declare its extent, as far as those are concerned on whom the obligation is placed. The obligation upon the individual citizens of the United States to obey the laws, results from the acts of their respective States, by which they became parties to the Union; and a similar act of the same authority declaring the extent of the obligation must be of equal authority, and of course releases the citizen from the obligation which he came under, by the effect of the former one.'

This is a point of great importance. It is here admitted, that the individual citizens are under an obligation to obey the law which the State is attempting to annul; but it is affirmed, that they may be discharged from this obligation by an act of the State annulling the law, because the same authority which imposed the obligation upon them has a right to release them from it. It is a matter of high concern for all who wish to know, and knowing, mean to perform their duties, to inquire how far this principle is true, or, if true, applicable to the present case.

The same authority which imposes an obligation must of necessity possess the right of dispensing with it, or declaring its extent. This principle, properly explained, may be received as true. But what is the authority which imposes the obligation,—for example, to execute a contract? Does the Vice-President suppose that it is the will of the parties who make the contract, and that the same will which brought each of them under the obligation, can, at any time, release him from it? Does he suppose, for example, that it is the will of the two parties to a contract of marriage which imposes upon them the obligations incident to that contract, and that either party can, by a mere act of the will, exempt him or herself from these obligations? We are quite sure, that Mr. Calhoun would not himself think of maintaining a doctrine so monstrous. What then is the authority which imposes the obligation? The answer is plain. The authority imposing the obligation is the one which makes the law, from which the obligation results. In ordinary cases, when the obligation results from the laws of the land, the authority imposing it is the Government of the country. In the case of contracts between parties not subject to the same Government, the obligation results from the moral law, and is imposed by the will of the great Lawgiver of the Universe. The present is the case of an obligation resulting from the law of the land. The citizens of South Carolina are bound to pay the duties required by the existing Tariff, because it is a part of the law of the land. They were brought under the obligation to obey the laws of the United States, by the act of the State of South Carolina, by which she and twelve other States formed themselves into one body politic, under a common Government, just as an individual is brought under the obligations resulting from a contract of marriage, by his own will to enter into it. But the authority imposing the obligation is in both cases not the will of the party, but the Government of the country. The Government has the same right to repeal or alter the law which it had to enact it, and in this sense the principle is true, that the same authority which imposes the obligation, has a right to dispense with it or to declare its extent. But the citizens of South Carolina, whether in their individual or joint capacity, have no more right to exempt themselves, by any act of their own, from the obligation to obey the laws which they have come under by adopting the Constitution, or to declare its extent, than they have to exempt themselves by their own act from the obligation to support their wives and children, which they have come under by entering into contracts of marriage. Nor does it make any difference that the act, by which the citizens of Carolina became parties to the social compact, was performed by them in their joint and not in their individual capacity. There are many cases, in which individuals are brought under obligations of various kinds by acts partly or entirely independent of their own will. A child is brought under the obligations which he owes to his parents by an act of theirs, over which he had no control. Will it be pretended that they have a right to relieve him from these obligations, or to determine their extent? A husband is liable for his wife's debts,—a principal is bound by the acts of his agents,—a ward by those of his guardian:—will it be pretended that the wife, the agent, the guardian has, either in law or morals, a dispensing or interpreting power over the obligations which they have brought upon other individuals by their acts? No person of sound mind could hazard so extravagant an assertion. Just as preposterous would it be to imagine, that because the citizens of Carolina were brought under their obligation to obey the laws by an act of the State, that is, of themselves in their joint capacity, they have therefore a right, acting in their joint capacity, to exempt themselves individually from this obligation. Common sense revolts at the suggestion. It is really wonderful, that principles so palpably erroneous should be depended on by a man like Mr. Calhoun, as a justification for measures of such transcendent importance and fearful tendency.

The principle that the same authority which imposes an obligation may dispense with or determine its extent is therefore, rightly understood, a true and salutary one: but instead of sustaining the Vice-President's doctrine, it completely refutes the very point which it was employed to establish. The authority which imposes upon the citizen the obligation to pay the duties is the Government of the country; and the same authority only can, by repealing or modifying the law, release him from this obligation, or in any way affect its character.

We have thus adverted, somewhat in detail, to the principal points in the Vice-President's exposition, and have endeavored to show that the doctrine of nullification is, upon the face of it, unconstitutional, impracticable and of ruinous tendency, and that there is no solid foundation for the few considerations of an argumentative character, by which Mr. Calhoun has endeavored to support it. Before taking leave of the subject, it may be proper to notice some views of a rather more general description which occupy a considerable portion of his letter, and are evidently regarded by its author as highly interesting and important.

It has often been objected, and as we conceive with great justice, to the pretensions of the Carolina politicians, that they contradict the acknowledged principle of republican Government, that the will of the majority should govern. That one State should undertake to annul the proceedings of the whole twenty-four, is a thing plainly at variance with this received and salutary axiom. In attempting to reply to this objection, the Vice-President takes a distinction between what he calls absolute and concurring majorities. By the former, he understands the numerical majority of the citizens taken in the aggregate; by the latter, a majority of the different sections, classes or interests into which they are divided. The absolute majority has, as he conceives, a constant disposition to encroach upon the rights of the minority; and in order to protect the sections or interests of which the minority is composed, it is important that each of these sections or interests should have a voice, as such, in the administration of the Government. In this country the distinct sections or interests are chiefly the States; and the doctrine of nullification, in authorizing a single State to arrest the action of all the rest, although it contravenes the principle of the absolute, is in perfect accordance with that of the concurring majority. This latter principle is recognised, according to the Vice-President, in the political institutions of most of the free States of all periods. He cites particularly the case of Rome, where the tribunes, representing the Plebeian class, had a negative upon the acts of the Senate. In this country, he conceives it to have been the intention of the framers of the Constitution, that the principle of the absolute majority should prevail in the ordinary business of administration, and that of the concurring majority in all questions belonging to the formation, amendment or construction of the Constitution. This is the great secret of the 'solidity and beauty of our admirable system;' and the doctrine of nullification, which proceeds upon this principle, instead of having a tendency to weaken this system, on the contrary confirms and carries it into effect in one of its most essential and salutary provisions.