American politics (non-partisan) from the beginning to date

by Thomas V. Cooper; Hector T. Fenton

John C. Calhoun on the Rights of the States.

Delivered July 26, 1831.

The question of the relation which the states and general government bear to each other, is not one of recent origin. From the commencement of our system, it has divided public sentiment. Even in the convention, while the Constitution was struggling into existence, there were two parties, as to what this relation should be, whose different sentiments constituted no small impediment in forming that instrument. After the general government went into operation, experience soon proved that the question had not terminated with the labors of the convention. The great struggle that preceded the political revolution of 1801, which brought Mr. Jefferson into power, turned essentially on it; and the doctrines and arguments on both sides were embodied and ably sustained; on the one, in the Virginia and Kentucky resolutions and the report to the Virginia legislature; and on the other, in the replies of the legislature of Massachusetts and some of the other states. These resolutions and this report, with the decision of the Supreme Court of Pennsylvania about the same time (particularly in the case of Cobbett, delivered by Chief Justice McKean, and concurred in by the whole bench), contain what I believe to be the true doctrine on this important subject. I refer to them in order to avoid the necessity of presenting my views, with the reasons in support of them in detail.

As my object is simply to state my opinions, I might pause with this reference to documents that so fully and ably state all the points immediately connected with this deeply important subject; but as there are many who may not have the opportunity or leisure to refer to them, and, as it is possible, however clear they may be, that different persons may place different interpretations on their meaning, I will, in order that my sentiments may be fully known, and to avoid all ambiguity, proceed to state, summarily, the doctrines which I conceive they embrace.

The great and leading principle is, that the general government emanated from the people of the several states, forming distinct political communities, and acting in their separate and sovereign capacity, and not from all of the people forming one aggregate political community; that the Constitution of the United States is in fact a compact, to which each state is a party, in the character already described; and that the several states, or parties, have a right to judge of its infractions, and in case of a deliberate, palpable, and dangerous exercise of power not delegated, they have the right, in the last resort, to use the language of the Virginia resolutions; “to interpose for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them.” This right of interposition thus solemnly asserted by the state of Virginia, be it called what it may—state right, veto, nullification, or by any other name—I conceive to be the fundamental principle of our system, resting on facts, historically as certain as our revolution itself, and deductions as simple and demonstrative as that of any political or moral truth whatever; and I firmly believe that on its recognition depends the stability and safety of our political institutions.

I am not ignorant that those opposed to the doctrine have always, now and formerly, regarded it in a very different light, as anarchical and revolutionary. Could I believe such in fact to be its tendency, to me it would be no recommendation. I yield to none, I trust, in a deep and sincere attachment to our political institutions, and the union of these states. I never breathed an opposite sentiment; but, on the contrary, I have ever considered them the great instruments of preserving our liberty, and promoting the happiness of ourselves and our posterity; and next to these, I have ever held them most dear. Nearly half my life has passed in the service of the Union, and whatever public reputation I have acquired, is indissolubly identified with it. To be too national has, indeed, been considered, by many, even of my friends, to be my greatest political fault. With these strong feelings of attachment, I have examined, with the utmost care, the bearing of the doctrine in question; and so far from anarchical or revolutionary, I solemnly believe it to be the only solid foundation of our system, and of the Union itself, and that the opposite doctrine, which denies to the states the right of protecting their reserved powers, and which would vest in the general government (it matters not through what department) the right of determining exclusively and finally the powers delegated to it, is incompatible with the sovereignty of the states, and of the Constitution itself, considered as the basis of a Federal Union. As strong as this language is, it is not stronger than that used by the illustrious Jefferson, who said, to give to the general government the final and exclusive right to judge of its powers, is to make “its discretion and not the Constitution the measure of its powers;” and that “in all cases of compact between parties having no common judge, each party has an equal right to judge for itself, as well of the operation, as of the mode and measure of redress.” Language cannot be more explicit; nor can higher authority be adduced.

That different opinions are entertained on this subject, I consider but as an additional evidence of the great diversity of the human intellect. Had not able, experienced, and patriotic individuals, for whom I have the highest respect, taken different views, I would have thought the right too clear to admit of doubt; but I am taught by this, as well as by many similar instances, to treat with deference opinions differing from my own. The error may possibly be with me; but, if so, I can only say, that after the most mature and conscientious examination, I have not been able to detect it. But with all proper deference, I must think that theirs is the error, who deny what seems to be an essential attribute of the conceded sovereignty of the states; and who attribute to the general government a right utterly incompatible with what all acknowledge to be its limited and restricted character; an error originating principally, as I must think, in not duly reflecting on the nature of our institutions, and on what constitutes the only rational object of all political constitutions.

It has been well said by one of the most sagacious men of antiquity, that the object of a constitution is to restrain the government, as that of laws is to restrain individuals. The remark is correct, nor is it less true where the government is vested in a majority, than where it is in a single or a few individuals; in a republic, than a monarchy or aristocracy. No one can have a higher respect for the maxim that the majority ought to govern than I have, taken in its proper sense, subject to the restrictions imposed by the Constitution, and confined to subjects in which every portion of the community have similar interests; but it is a great error to suppose, as many do, that the right of a majority to govern is a natural and not a conventional right; and, therefore, absolute and unlimited. By nature every individual has the right to govern himself; and governments, whether founded on majorities or minorities, must derive their right from the assent, expressed or implied, of the governed, and be subject to such limitations as they may impose. Where the interests are the same, that is, where the laws that may benefit one will benefit all, or the reverse, it is just and proper to place them under the control of the majority; but where they are dissimilar, so that the law that may benefit one portion may be ruinous to another, it would be, on the contrary, unjust and absurd to subject them to its will: and such I conceive to be the theory on which our Constitution rests.

That such dissimilarity of interests may exist it is impossible to doubt. They are to be found in every community, in a greater or less degree, however small or homogeneous, and they constitute, everywhere, the great difficulty of forming and preserving free institutions. To guard against the unequal action of the laws, when applied to dissimilar and opposing interests, is in fact what mainly renders a constitution indispensable; to overlook which in reasoning on our Constitution, would be to omit the principal element by which to determine its character. Were there no contrariety of interests, nothing would be more simple and easy than to form and preserve free institutions. The right of suffrage alone would be a sufficient guarantee. It is the conflict of opposing interests which renders it the most difficult work of man.