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

by Caleb William Loring

Then the report further says that the Constitution was formed by the sanction of the States, given by each in its sovereign capacity. Taking the definition of States as before given, this is merely an assertion that in each State the people, who have the sovereign capacity, sanctioned it. After this comes the rather obscure, and possibly objectionable, doctrine. “The States,” meaning the people, “then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the contract made by them be violated, and consequently that as the parties to it they must themselves decide in the last resort.”

It is to be noticed that the resolution carefully limits the decision of the people or States to “in the last resort.” It does not define when the last resort occurs. But the resolution (what the report is commenting on) is, “that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact”—that is, in cases of deliberate, palpable, and dangerous usurpation—there is a right of the parties to the compact or government to decide, to act, to resist that usurpation. This is a declaration of the right of revolution; it is an assertion of that right in the last resort,—when argument and reasoning fail; a right that Webster admitted; the right that we the colonies claimed against Great Britain; the right of resistance against deliberate, palpable, dangerous usurpations of power; otherwise there is no redress for tyranny. No one denies this right. If unsuccessful, it is rebellion, and punished as such. So carefully, however, did Virginia assert this right that the explanatory report itself calls attention to “guard against misconstruction.” The interposition is not only to be in cases of deliberate, dangerous, and palpable breaches of the Constitution, but “to be solely that of arresting the progress of the evil of usurpation.” The resolutions do not even claim that in case of usurpation the binding compact of the government is broken up, but that the parties to it, which it has stated to be the people, should solely interfere to arrest the evil. The report proceeds with the statement that if there could be no interposition from usurped powers there is a subversion of rights recognized under State constitutions, and a denial of the fundamental principle upon which our independence was declared.

The report admits as true, “that the judicial department is in all questions submitted to it by the forms of the Constitution to decide in the last resort.” We have only to turn to the Constitution to see how extensive is this submission. It is in all cases arising under the Constitution and the laws made under it, in all cases in which States are parties, in all cases where treaties or the United States are concerned that it has this supreme power of judgment. This is precisely the contrary doctrine to that of nullification.

The explanation further proceeds that it is in the last resort, “in relation to the authorities of the other departments of the government, and not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.” Perhaps it may not be amiss to notice that all judicial power is over the rights of the parties delegating it, the parties to the compact establishing the government. The delegation is not confined to power over the authorities of the other departments of the government, and the delegation of judicial power does annul the authority delegating it as far as the power delegated extends. It does not delegate usurpation of powers, nor does it prevent revolution against usurped powers. This is what the explanation means. But why the exception as to the other departments of government? Usurpation by the judiciary over the other departments is contrary to the conferred powers, and thereby affects the rights of the parties to the compact. It is beyond what they delegate. Such usurpation could very properly be resolved against: even more, resisted “in the last resort.”

Then comes the assertion: “The authority of constitutions over governments and of the sovereignty of the people over constitutions are truths which are at all times to be kept in mind, and at no time perhaps, more necessary than at present.”

As people make constitutions for the sole purpose of conferring powers to governments over themselves which are to be superior and to compel obedience, and punish those refusing it; and as the people always have the power to make new constitutions or to amend them under the regulations they have established; the suggestion of superiority seems a glittering generality, at that time rather out of place.

The explanation then defends the assertion in the resolutions, that these assumptions of powers, extending the sovereignty of the United States, supersede the sovereignty of the States in the cases reserved to them, and that its result “would be to transform the republican system of the United States into a monarchy.” This fear that the government would by assuming undelegated powers end in a monarchy was the objection to the Constitution made in the convention that formed it, and in the conventions of the people of the different States when they adopted it. And in the Virginia resolutions it is said to be “the general sentiment of America.” It is further argued this great assumption of increased prerogative and patronage of the President might enable him to secure his re-election and regulate the succession and establish it as hereditary. This fear of that day to us seems absurd; but in the days of George the Third, and not so many years from the Stuarts, it had a more plausible foundation.

The explanation further says, and it is in fact an admission of its truth, “that it has been stated that it belongs to the judiciary of the United States and not to the State Legislatures to declare the meaning of the Federal Constitution.” “But a declaration that proceedings of the Federal Government are not warranted by the Constitution is a novelty neither among the citizens nor among the Legislatures of the States.”

The report then takes up and undertakes to defend the resolve, that the government has manifested a spirit to enlarge its granted powers by a forced construction of the Constitution. It instances especially the Alien and Sedition Laws, and declares the Alien Law to be unconstitutional, because it gave the President legislative and judicial powers in addition to those of the Executive. The Act, it says, enabled him to send out of the country, in times of peace, aliens, citizens of a friendly nation whom he should judge dangerous to the public safety or suspect of treacherous or secret machinations against the government, giving him thus legislative power, making his will the law. He also is the judiciary; without the oath or affirmation of an accuser, his suspicion the only evidence to convict; his order the only judgment to be executed. And this order may be so made as to deprive the victim of the privilege of the habeas corpus.