Nullification, Secession, Webster's Argument, and the Kentucky and Virginia Resolutions / Considered in Reference to the Constitution and Historically

by Caleb William Loring

The claim of South Carolina, at the time of her threatened nullification and secession, and of the South at the period of our civil war, is, that the Constitution which the States adopted formed them into a confederacy and not a nation. It is admitted, and is not denied, that if the government established was national there can be no valid claim of a component part to treat its laws as of no validity, a nullity, or to dissolve it at its will.

Indeed, Calhoun, the great expounder of the nullification and secession doctrine, considered this to be a vital matter, and always insisted that the United States was not a nation. He complained that the reporters made him say,

“this Nation instead of this Union.” “I never use the word nation in speaking of the United States: I always use the word union or confederacy. We are not a nation, but a union, a confederacy of equal and sovereign States. England is a nation, Austria is a nation, Russia is a nation, but the United States are not a nation.”[9]

The South during the civil war claimed that the States made the government of the United States, and that the States were and remained independent sovereign nations. And each State being an independent sovereign nation, had the right to decide whether the power it had given to the United States Government was properly exercised by its Legislature or its officers, and to declare and treat as a nullity and as void any law passed, any act done in excess of that authority, and to withdraw from the Confederacy—that is, to secede, at its will.

It will at once be seen, as the time during which the Union is to endure is not limited in the Constitution, that, if this right of secession exists, a State could leave the day after it adopted the Constitution. The Union is either perpetual or dissoluble at pleasure. In the secession ordinances passed by the Southern States at the commencement of the civil war the ground was taken that the States of their sovereign right and will resumed their place as independent nations. That is, the duration of the Union was from the very beginning at the caprice of each and every State. No less, if the doctrine of nullification be correct, that each State can declare and treat as null and void the acts of the United States it deems beyond the powers it has granted, it can nullify and make void the laws of the United States, all the acts of its officers, all the judiciary proceedings at its caprice.

Nor is it extravagant to say caprice. South Carolina’s nullification and secession acts and resolves in 1832 were on the ground of the unconstitutionality of a protective tariff. There had been a great number of protective tariffs enacted before, which South Carolina had favored by her votes, and the second law of the United States, enacted at the commencement of the government, at the first session of the first Congress, was for the protection and encouragement of manufactures. Its preamble is: “Whereas, it is necessary for the support of government, for the discharge of the debts of the United States, and the encouragement and protection of manufactures, that duties be laid on goods, wares, and merchandise imported.” Madison,[10] who was the leader of the House of Representatives in this first Congress, wrote that no one questioned the right of making protective duties. Billions of dollars have been levied by the collection of protective duties from the beginning of the government to the present day. No litigant paying duties even as excessive as those on pearl buttons and tin plates, nor lawyer, a class not diffident in advancing untenable claims, has been found, as far as we know, to question before the Supreme Court the legality of these duties, because they were protective or paid this slight reverence to a doctrine in support of which South Carolina threatened war and secession.

It seems only necessary to state the viciousness of this doctrine of nullification and secession, that every State could practically put its veto on every law and act of the General Government it questioned, and dissolve it at its pleasure, to prove that no such impracticable government was established. Certainly, reasoning a priori, this doctrine has no standing.

Our General Government differs from that of Great Britain and nearly all other governments in that it is created by a written Constitution, and its authority is limited by that Constitution. The power of Parliament is imperial; there is no limit to it; it does what it deems best. There apparently is an almost insurmountable difficulty in the writers of other countries, only knowing unlimited, imperial supreme governments, to comprehend that a government of limited powers can be supreme in the powers granted to it. Knowing that the powers of our General Government are limited, they are apt to draw the conclusion that the fundamental unlimited power must be in the subordinate component parts, the States.

Our States, as well as the General Government, have limited powers granted by written constitutions. The State governments are not only limited in their powers, but the people, who established them in their constitutions, have invariably recognized the supreme power of the General Government; in none of them have they undertaken to confer on the State Legislatures or government powers in conflict with the sovereign national powers of the General Government. The powers given to the State governments are subordinate and local. All the constitutions, State and General, have had the sanction and an adoption by the people.