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

by Caleb William Loring

Virginia’s position, though less decided than that of the other States, did not please Calhoun; in reply to her Senator, Mr. Rives, who had opposed the South Carolinian doctrine, he spoke of her as “a once” patriotic State. Virginia’s resolutions were, that the doctrines of State sovereignty and State rights as set forth in her resolutions of 1798, and sustained by the report thereon of 1799, were a true interpretation of the Constitution, but she did not consider them as sanctioning the proceedings of South Carolina in her said ordinances, nor as countenancing all the principles assumed by the President in his proclamation. Virginia sent Mr. Leigh as a commissioner to South Carolina, but without result.

Mississippi, Jefferson Davis’ State, declared “that, in the language of the father of his country, we will indignantly frown upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the ties which link together its various parts.” Nullification was condemned in the strongest terms, and it was declared they would support the President in maintaining the Union.

In the next year, Robert J. Walker canvassed the State for a seat in the Senate with Poindexter, his opponent; the issue was a question of nullification, and Walker, after a contest of three years, prevailed and became Senator at the election, January 8, 1836. General Jackson wrote a letter in his favor.[101]

Alabama declared nullification “is unsound in theory and dangerous in practice”; North Carolina, that it “is revolutionary in its character, and subversive of the Constitution, and leads to disunion”; Georgia, “that we abhor the doctrine of nullification as neither a peaceful nor a constitutional remedy,” and further declare, while they deplore the rash and revolutionary measures of South Carolina, they warn their citizens against adopting her mischievous policy.[102]

These were the opinions of the Southern States in 1833. So that at that time, as a matter of history, South Carolina alone claimed the right of nullification and secession.

We have before said it has been customary for the Legislatures of States to pass resolutions declaring acts and laws of the United States—that they are opposed to—unconstitutional, and therefore null and void; but that these State resolutions do not make them so; that they are merely the opinions of the Legislatures that pass them; that the decision, whether laws of the United States or acts of its government are null and void, rests solely with the judiciary of the United States.

On examination we find, from the inception of Washington’s administration until the inauguration of Lincoln, that, without exception, the authority and supremacy of the laws and government of the United States have been maintained and enforced by its courts over every State, and every State government and judiciary, and every individual therein:—Over Pennsylvania, as we have before set [forth] in the Gideon Olmstead case, when the representatives of the State officer who had disbursed prize money under the decision of the State Court were compelled to repay it to the United States.[103] Over Kentucky itself, in 1812, when the court maintained that a Kentucky State court had no jurisdiction to enjoin a judgment of a court of the United States.[104] Over Kentucky and Virginia, in a serious controversy about the validity of the grants of those States.[105] Over Maryland, when the State undertook to tax the branch of the United States Bank established in her territory, on the ground that no State could tax the instrument employed by the government in the exercise of its powers.[106] In this case Chief-Justice Marshall declared: “If any one proposition would command the universal assent of mankind, we might expect it to be this, that the government of the Union, though limited in its powers, is supreme within its sphere.” Even further, the United States Court interfered and took from the State court of Virginia jurisdiction of the prosecution by that great State of one of its own citizens for illegally selling tickets in a lottery, because the lottery had been authorized in the District of Columbia and brought in question the validity of a United States law.[107] Over Massachusetts, in declaring the embargo legal. Over New York, when it declared illegal the State’s grants to Fulton, the inventor of the steamboat, of the exclusive right of navigation of the Hudson. Over Ohio, when the State insisted on taxing the branch of the Bank of the United States, the court issuing its mandamus and compelling the State’s Treasurer to obey its decree.[108] Over South Carolina, in 1829, not long before her threatened nullification, when the court annulled the taxation by the city of Charleston of the bonds of the United States, because it was an interference with the power of the General Government to borrow money.[109] The disputes of States about their boundaries often came before the Supreme Court and were settled, the States appearing as parties. Indeed, such interference and control were so frequent and so implicitly submitted to that Chief-Justice Marshall said: “Though it had been the unpleasant duty of the United States courts to reverse the judgments of many State courts in cases in which the strongest State feelings were engaged, the State judges have yielded without hesitation to their authority, while perhaps disapproving the judgment of reversal.”[110]

These decisions of the United States Supreme Court were made by judges appointed by all the political parties that had been in power, by those in favor of a strict as well as a liberal construction of the Constitution. Taney, a very eminent jurist, and his associates, judges appointed by the political party predominant in the States that attempted to disrupt the Union, held that the Constitution and the laws of the government were paramount, and announced and maintained their supremacy to the beginning of the rebellion over every State court and State law and constitution.[111]

The action of the State of Georgia in 1832, in a controversy between that State and the United States Supreme Court, has been cited in support of the theory that Georgia maintained the doctrine of State supremacy. In that case the matter never came to an actual conflict. Why the United States decision was not promptly enforced is a matter that it is not here worth while to enter into.[112] It is sufficient to quote the resolutions of the Legislature of the State in 1833, that she abhorred the doctrine of nullification and deplored the revolutionary measures of South Carolina and warned her citizens against adopting that mischievous policy, to show that the State, in her opposition to the christianizing of Cherokee Indians, did not question the supremacy of the United States Government.

It is often asserted by historical writers that the Supreme Court of the United States, under the guidance of Marshall, has built up, magnified, and extended the powers of the government. Undoubtedly the court has great power in deciding whether the laws of a State or the acts of a State officer are illegal, when the question is whether they infringe on the rights of the general government; it, however, cannot make laws and acts extending the national powers. Its authority is, for the most part, that of restraint over the acts of the executive and United State officers, and of annulling, as it often has, the laws of Congress adjudged to be beyond its powers. It is Congress that made the Alien and Sedition laws, United States banks, tariffs and embargoes; it was the President and Congress who freed the negroes. Even in the war of secession, the judiciary declared the President’s disregard of the habeas corpus in Milligan’s case illegal.[113]