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

by Caleb William Loring

In the second clause comes the objectionable clause, that the government created is not the exclusive or final judge of the extent of the powers delegated to it.

We have already set forth that in this Constitution, or compact, which is declared, by those who made it, supreme over all constitutions and laws of every State, that all cases arising under the Constitution or laws of the United States shall be tried by its judiciary.[66] Here is a compact by the people of the several States, that when any questions or cases arise the United States Judiciary shall have jurisdiction and decide upon them. The parties to this compact have thus expressly made that judiciary the final judge of the validity of the laws, and therefore necessarily of the extent of power delegated to the government. It cannot be denied that even independent sovereign nations can establish a tribunal over themselves by arbitration or compact that shall be conclusive. How then can the supremacy of the judiciary of the United States be questioned by a State, whose people have deliberately declared the United States Judiciary supreme over the State constitution and laws, and that it has supreme judicial authority over all cases arising under its Constitution and laws.

We must bear in mind that our Constitution and Government would have been an absurdity and a failure, if every State, as an independent authority, could question the validity of a United States law or the act of any of its legal or administrative officers; four and forty different State judiciaries to decide on what law was valid in each independent sovereign State or Nation. As Webster and Chief-Justice Marshall said, and Calhoun admitted, on every constitutional question this theory of nullification gave as many vetoes as there are States.

Admitting, however, for the argument, that the States are independent sovereign nations, this nullification doctrine of the Kentucky resolutions is very faulty. It asserts the right of those who deny the binding obligation of the compact, to break it; it entirely ignores the right of the other parties, even when of the majority, who hold to a different construction, to enforce their view. In all compacts or agreements between nations there is the right of the independent sovereign nations, and emphatically when of the majority, to make another independent nation perform the compact it has made. The majority is not obliged to yield to the minority. The ultima ratio, the final reasoning of nations is war, and the majority certainly have that right.

Jefferson himself asserted this right of a confederacy to coerce a State, a party to an agreement, when he wrote to Cartwright that the Confederate Congress should send a frigate and compel a State to pay its quota. Washington was of the same opinion, when, in reference to New Jersey’s refusal to pay her contribution, he wrote, “that counties in Virginia and Massachusetts might oppose themselves to the laws of the State in which they are, as an individual State can oppose itself to the Federal Government.”[67]

The absurdity of the Kentucky resolutions[68] does not end with the nullification theory. One would imagine the dispute would have been, who did not write them, not who did. By the Constitution certain powers are given to Congress, and the authority “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” The power to punish three offences only is mentioned, but that Congress had the power to enact all laws necessary to enforce and maintain its authority is expressly given, and never had been questioned before these resolutions.

The authority of Congress is often illustrated by referring to the power given “to establish post-offices and post-roads.” Under this brief grant, Congress has passed laws punishing the robbing and obstructing the mail, and breaking open letters, and has assumed the right of taking of lands, and building post-offices, and doing everything requisite for protecting, transmitting, and distributing mail matter. Congress has also passed laws punishing the bribing of judges and of obstructing or in any way interfering with judicial processes. In fact, it is difficult to see how the government could go on without these powers to enforce and maintain its authority. But this Kentucky Legislature resolved that Congress had only the power to punish treason, counterfeiting the securities and coin of the United States, and piracies and felonies committed on the high seas, and offences against the laws of nations; because the power to punish these three crimes was alone enumerated in the Constitution. And it expressly enumerated two acts, one the Sedition Law, and the other an act to punish forging or uttering counterfeit bills of the Bank of the United States, “and all other their acts (‘Congress’) which assume to create, define, or punish crimes other than those enumerated in the Constitution, are altogether void and of no force”; that the States only had this power each in its own territory.

The resolutions also arraigned the government for the sedition and other acts punishing crimes, saying “that the General Government may place any act they think proper on the list of crimes and punish it themselves.” It declared “that these and successive acts of the same character may tend to drive these States into revolution and blood.” It will be noticed that the resolutions make no claim of a right of secession. The use of the words revolution and blood implied that resistance to the laws would be war.

The resolutions also arraigned the government for the Alien Law, calling it a tyranny, and asking the States to concur with them in considering that the acts of the General Government were so unconstitutional that they amount to an undisguised declaration “that the compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States of all powers whatsoever”; and they ask the States that they will concur in declaring these laws void and of no force, and in requesting their repeal. The resolutions did not call upon the people or State of Kentucky to treat these denounced laws as null and void, but asked the other States to join them in getting Congress to repeal them.