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

by Caleb William Loring

In giving Webster’s argument on the question of nullification, we will use his speech in reply to Hayne, and his subsequent speech in answer to Calhoun, delivered three years later, in 1833.

He showed, as we shall see, that by adopting the Constitution a national government was formed, with legislative authority to make laws that should be supreme within the powers granted in the Constitution, with an Executive to carry out those laws, and a supreme Judicial Department that should decide all questions arising under those laws, and whether they were within the granted powers, whose decision no State could question.

After disposing of the personal attack on himself and that against the East, Webster took up that against the Union; he went back to its formation, treating it historically. Under the confederacy made between the States the whole power of the government was in the Continental Congress. Though it could make war and peace, it could raise troops and obtain its revenues only through the action of the several States; it could not even regulate commerce and had no coercive power over the States; its executive powers were exercised by committees and officers appointed by the Congress. This Continental Congress carried the country safely through the revolution; but during the few years afterwards,—without the rights and powers essential to an effective government, without a Judiciary and a responsible Executive, the States quarrelling amongst themselves and struggling with internal troubles—its authority became so weakened that it inspired respect neither at home nor abroad[4]; and the people of all the States, finding the necessity of a stronger government, the separate States entered into a convention to form one.

The first resolution of this convention was, that the government of the United States ought to consist of a Supreme Legislature, Judiciary, and Executive; this showed the power that it intended to give the government.

The declaration in the preamble of the Constitution they formed, set forth: “We, the PEOPLE of the United States, in order to form a more perfect Union,” etc., “do ordain and establish this Constitution for the United States of America.”[5] It was not that the States or the people of the separate States made the Constitution, but it was the people of the whole United States, and the acceptance of this Constitution was submitted to conventions of each State, chosen by the people, and not to the State governments and legislatures.

It was from Webster’s declaration, “It is the people’s Constitution, the people’s government; made for the people; made by the people and answerable to the people,” that Lincoln took the closing words of his short immortal Gettysburg address, and applied them to the national soldiers who had there died for the Union: “That this nation, under God, shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth.”

Webster referred to contemporary history, to the writings of the Federalist, to the debates in the conventions, to the publications of friends and foes, as all agreeing in the statement that a change had been made from a confederacy of States to a different system, to a national government. The writers of the Federalist say:

“However gross a heresy it may be to maintain, that a party to a compact has a right to revoke the compact, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of the consent of the people.”