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

by Caleb William Loring

The dispute between the greater and smaller States was finally settled by the provision that all money bills should originate in the first branch of the Legislature, that direct taxation should be in proportion to representation in that branch, and that there should be an equal representation in the upper House, the vote however being per capita and not by States. The final vote on this settlement was almost unanimous, only one State, Maryland, in the negative.[35]

It has been argued by Davis, Stephens, and others, that this equal representation of the States in the Senate was an establishment of a confederacy, and it has been a stumbling-block in the way of many constitutional commentators who have considered it a compromise between a national and a confederate government. It is a compromise of the right of representation in one branch only of the legislative department of the government; but it is no compromise in the powers granted. The powers granted to the government are of supremacy, legislative, executive, and judicial, over State and State constitutions and State judiciaries. If there had been rotten boroughs established by the Constitution like those then in Great Britain, if Delaware and Rhode Island had been given double the representation that Virginia had, or if every slave of the South had counted for two white men in the free States, the granted powers of the government would have been none the less supreme and national, as the Constitution itself declares, and as they in reality are. Scotland is not a sovereign nation because her peers elect twelve of their number to the House of Lords of the government of Great Britain. Oxford and Cambridge Colleges are not sovereign powers because they choose representatives to the House of Commons. Charles Pinckney of South Carolina with reason said: “Give New Jersey an equal vote and she will dismiss her scruples and concur in the national system.”

The other resolutions of Virginia, except those relating to an executive, had been acted upon, when Elbridge Gerry of Massachusetts moved, that “the proceedings of the convention for the establishing of a national government” “be referred to a committee to prepare and report a Constitution”; a committee of five was agreed upon, no one objecting,[36] no one denying that the government was a national one. From the 23d to the 26th of July the plan of the Executive was considered and settled, and was unanimously referred to the Committee of Detail, that of five already appointed to prepare and report the Constitution. The convention adjourned until August 6th, to give the necessary time to their committee. The resolves then passed are stated in Elliot’s Debates.[37]

The first was, that the government of the United States ought to consist of a supreme legislative, judiciary, and executive. The second, third, fourth, and fifth were the resolves as to the two branches of the Legislature. The sixth was: “Resolved, that the national Legislature ought to possess the legislative rights vested in Congress by the Confederation; and moreover to legislate in all cases for the general interests of the Union,” etc., etc.

In the 12th, 13th, 14th, 15th, 16th, 20th, and 23d—the last, the executive, the legislative, the judiciary, and the government were termed national. These are the resolutions passed by the convention, all declaring the government and every branch of it was national. This was the plan agreed on; no changes were made except of detail and for euphony, and some modifications.

On August 6th the Committee of Detail reported the Constitution; a printed copy was furnished to each member.[38] The preamble was, “We, the people of the States of New Hampshire, Massachusetts,” then follow the names of all the other States, “do ordain, declare, and establish the following Constitution for the government of ourselves and our posterity.”

“Article I. The style of the government shall be the United States of America.”

“Article II. The government shall consist of supreme legislative, executive, and judicial powers.”

By Article X. the executive was vested in a president, to hold his office for seven years, but not re-eligible, whose title was to be “His Excellency.”

It will be noticed that the preamble had the declaration of perpetuity, that we, the people, made it for “our posterity.”