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

by Caleb William Loring

For some reasons wholly incomprehensible, these nullifying resolutions of Kentucky and those of Virginia have been seized upon and referred to by late writers in the mistaken belief that they were the same, and are alike declaratory of the right of a State, as an independent sovereign power, to treat as null and void any United States law it deems to be so, and with apparently the belief that they were concurred in to a great extent at the time of their adoption.[69]

No one has suffered more than Madison from this error,—Madison, justly called the father of the Constitution, who, when its adoption seemed to depend upon the acquiescence of New York, and that State hesitated about joining the Union and proposed to make a conditional acceptance, firmly declared an acceptance was absolute and perpetual, who in No. 39 of the Federalist, the work written for the purpose of setting forth the plan of the new government, was no less explicit on the question of nullification, and said: “It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the general government.... Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact, ... and it could be safely established under the first alone,”—the General Government. And who later in 1833 wrote to Webster in reference to his speech in answer to Calhoun: “It crushed nullification, and must hasten an abandonment of secession.”[70] His biographers speak of his double dealing in this matter, and even Mr. Hare, in his valuable commentaries on the Constitution, passes the same judgment on his conduct.[71]

But, besides Madison, the fair fame of the State of Virginia, to whom, for its being, the nation owes the greatest debt of gratitude, should not be tarnished by the taint of having so soon declared that the laws of the United States and the acts of its officers could be held and treated as null and void by every State that questioned their validity. From Virginia came Washington, the great general under whose command we became a nation, the presiding officer over the convention that made the Constitution, and who as our first President inaugurated and put successfully into operation the national government, assuming no unauthorized powers. To Virginia also is due the plan of the new government proposed in the convention by Randolph, and ably shaped and developed by Madison and Mason. Nor can we overlook the great Chief-Justice, Marshall, who for so many years and from its early existence defined the powers granted to the government, and maintained them with fairness and without encroachment on those of the States.

In these famed resolutions the Virginia State Assembly, professing a determination to maintain and defend the Constitution of the United States and of the State, and a warm attachment to the Union, declared that the powers of the Federal Government were limited by the plain sense and intention of the instrument constituting the compact the States are parties to, and that in a case of a deliberate, palpable, and dangerous exercise by the Federal Government of other powers not granted by the instrument of the compact between the States, it is the right and duty of the States, the parties thereto, to interpose and arrest the evil and maintain their rights. It asserted, with deep regret, that the Federal Government had enlarged its powers by forced constructions of the constitutional charter which defines them, and that there were indications of a design to consolidate the States into one sovereignty and to transform the government into an absolute or at best a mixed monarchy; that particularly the Alien and Sedition Acts exceeded the powers delegated by the Constitution, and were subversive of the general principles of a free government, and were expressly and positively forbidden by the Constitution; that the good people of this commonwealth, with the truest anxiety for establishing and perpetuating the Union, and with the most scrupulous fidelity to the Constitution, appeal to the other States to concur in declaring the acts aforesaid unconstitutional, and in taking the necessary and proper measures, in co-operation with Virginia to maintain the rights reserved to the States or people.[72]

It is to be borne in mind that the declaration of Virginia is, “that in a case of a deliberate, palpable, and dangerous exercise by the Federal Government of other powers not granted”—(that is, in the case of usurpations), it is the duty of the States, not the duty of a State, to interpose and arrest the evil and maintain their rights. Certainly in such cases some power should interpose, and if States can legally under the Constitution interpose to remedy such an evil, there can be no objection to such interposition. Indeed a usurpation of powers might be so plain and serious as to justify rebellion.

There is apparently a belief amongst some writers since Von Holst published his, so-called, Constitutional History of the United States, that Virginia laid down the doctrine, that “States can interpose.” As if it had been declared there was a right of States to interpose their authority and prevent the United States from enforcing its laws. It is in case of usurpations only Virginia claims that it is a duty and right to interpose to redress this evil. There is no statement how States should interpose; no suggestion that the method should be other than in the way the Constitution sanctions.

It is very much to be regretted that Mr. Henry Adams, in his very able and interesting history of the United States, should have added his great authority to this construction of the resolves. He says the Republican and the Federalist parties “were divided by a bottomless gulf in their theories of constitutional powers.” “The Union was a question of expediency, not of obligation: this was the conviction of the true Virginian school and of Jefferson’s opponents as well as of his supporters, of Patrick Henry as well as of John Taylor of Carolina and of John Randolph of Roanoke”; and “The essence of Virginian republicanism lay in a single maxim—the Government shall not be the final judge of its own powers.”

The resolutions of Virginia were understood by the other States as a denunciation of the laws of Congress, not as an assertion of a right of a State to interpose in their execution. Of the sixteen States, ten—Hildreth informs us, a fact that seems to be now overlooked, Maryland, Delaware, Pennsylvania, New Jersey, New York, Connecticut, Rhode Island, Massachusetts, New Hampshire, and Vermont—answered and condemned them.[73] The resolutions of seven of these ten are in Elliot’s Debates.[74] None of the other States supported them; indeed, from Jefferson’s and Madison’s correspondence, they were afraid North Carolina would also oppose them. The purport of the opposing resolutions is well stated in the report of a Committee of the Legislature of New York made in February, 1833, in the following words: