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

by Caleb William Loring

Neither the Chief Justice nor those distinguished jurists, Justice Swayne[15] and Justice Bradley,[16] controverted the right of secession when the case came before them, in the manner that Chief-Justice Marshall treated constitutional questions. They, however, declared in the most emphatic terms that there could be no secession, that the Union was an indissoluble one of indestructible States by the very provisions of the Constitution itself.

If we examine the provisions of the Constitution, we find in the first clause is declared the perpetuity of the Union; in the last clause, excepting that setting forth it shall be established on the ratification by nine States, is stated in language that cannot be mistaken, its supremacy over States and State constitutions.

It is by its very terms, we, the people, do ordain and establish this Constitution, that is the great charter giving powers to our new government, and it is, therefore, we, the people of every State, who declare that this Constitution, this government, and the laws and treaties made under it “shall be the supreme law of the land and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” There is no qualification that if we do not deem them legal we can treat them as null and void.

In order to secure and maintain that supremacy the people who made it require that the United States Senators and Representatives, “and members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution”; stamping, as on its coins, its authority over States and every State officer.

Now when the people of each and every State did “ordain and establish” a new form of government which was to be supreme over the constitution, that is the government of their particular State, and imposed upon every legislative, executive, and judicial officer of their own State an oath to support that government, where is the right of a State to question? Over what is the United States supreme if not over States? Why should an oath have been required to support that supremacy over State governments unless to make that supremacy certain, and resistance to or question of it criminal?

Those who made and established the government knew of the oath that is required by State governments of their officers to support their constitutions, and they would not have required this additional oath if the two oaths could have conflicted, or if there could have been any doubt that the obligations required by a State government were to be subordinated to the supreme powers and laws of the general government.

Then to prevent the government from being encroached upon by the States the judicial power was given to the United States over all cases arising under this Constitution, the laws of the United States, its treaties, and cases affecting ambassadors, etc. So, as Webster declared, no State law or judicial decision of a State could interfere. By this clause the United States courts had the right, which they have uniformly and very often exercised, from the beginning of our government until this day, of taking from the jurisdiction of the State courts all and every case in which the construction of a United States law came in question or where the legality of the act of any United States official was concerned.

We have seen that the supremacy of the United States over all States and State laws and the right to maintain that supremacy through its own courts and by its own officers was fully established by the Constitution. If we examine further the powers granted to the general government by this Constitution, we find all that can be called sovereign: those of intercourse with foreign nations, of war and peace, of raising and keeping an army and navy, of the currency, of commerce external and internal, of establishing post-offices and post-roads, and fixing the standard of weights and measures, the exclusive right of making citizens by naturalization, the regulating and command of the militia when in its service, and issuing of copyrights and patents, the making of all laws necessary and proper for carrying into execution the granted powers and all other powers vested by the Constitution in the government of the United States or in any department or office thereof, with prohibitions to the States from entering into any treaty, alliance, or confederation with another State or foreign power, making agreements or compacts with other States, keeping an army or war vessels in the time of peace, or making laws impairing the obligation of a contract, and ex post facto law, coining money, emitting bills of credit—that is making a paper currency (the issuing of paper had been carried to an excess by the States and the Continental Congress during the Revolution), and laying imposts or duties on imports or exports.[17] There is no sovereignty remaining to a State that has granted all these powers to the government over it, and is so restricted in its acts, and cannot even make an agreement or a compact with a sister State. Indeed, Calhoun, in his argument, seemed hard pushed to specify any sovereign powers left to the States, when he mentioned that the States had the power to appoint the officers of the militia and that Pennsylvania had undertaken to punish treason.

Though the United States alone have those supreme powers, which by political writers are generally called sovereign, the word sovereign has been also used by American writers and politicians in reference to the powers of a State. The people of every State have supreme powers over their own local affairs, their own territory and citizens where the power has not been given to the United States; they can enact laws making the penalty of stealing a pocket-handkerchief or smoking on the street punishable with death and carry them into effect. If they were, however, to make such laws to take effect for past acts, the United States would interfere, because no State can make an ex post facto law. So, in our separate States, a town or a county can run a road through anybody’s land and the State cannot interfere; because the people of the State have given that authority to the town or county. A Board of Health in many States can stop one’s factory, destroy his business, or close his house, by reason of its being deleterious to the general health, and there is no appeal. In these matters the town or county or Board of Health have supreme powers in their jurisdiction; but however supreme or however arbitrary they may be in their jurisdiction, they cannot extend them beyond—these supreme local powers are not sovereign powers.

It is a large, local, internal government that each State has over its territory, and the property and the acts of its citizens in that territory. The General Government in our extensive domain, having in addition to the powers it now has those of the States, would from the overwhelming mass of its duties be a failure.