by John W. Altman
Tuscaloosa, Alabama
April 1998
As ‘our’ national government, like a drunken sailor, reels from one scandal, usurpation of power, and violation of the Constitution after another, irrespective of the party in power, students of history, especially Southern history, may well recall the sentiments uttered at the memorable Jefferson Day Dinner of 1830. Modern textbooks have played up the nationalism of President Jackson expressed on this occasion, while virtually ignoring the genius of Mr Calhoun and his profound reply. The preeminent Southerner and statesman of his generation and for decades to come, the celebrated John C. Calhoun, in acumen, knowledge of government, and grasp of constitutional principles, was easily the equal of any member of the Constitutional Convention, and without peer, as he strode across the national stage during the first half of the 19th century.
Jackson had offered the toast: ‘Our Federal Union, it must be preserved.’ Calhoun had countered: ‘The Union, next to our liberty, most dear.’ A moment’s reflection reveals the keen logic and grasp of first principles by the incomparable South Carolinian, schooled as he was in the republican precepts of Madison and Jefferson, on the cause, nature, and justification of the Union.
And that these precepts were those of limited government, compact, sovereignty, and federalism signified a lingering awareness of the trials of the revolutionary period and an affirmation of the consequent success of the Constitutional Convention to balance and restrain power, with the bulk of powers left to the States. The very formation of the Constitution, declared Mr Madison, was a federal act, signifying that the Central government was the creation of the States. Now, in this day and time, behold the creature greater than the creator!
And where in the writings of the Founders exists an iota of justification for changing the Constitution, other than by the provisions contained in Article V? Mr Madison had clearly revealed where the meaning of the Constitution could be found; and, concerning the judiciary, the fount of many recent usurpations, Mr Hamilton had written: ‘The courts of justice are to be considered as the bulwarks of a limited Constitution.’ Whence, then, this loss of power and liberty by the States and the people? It was seeking solutions to questions such as these that Mr Calhoun devoted most of his life.
Although most modern Americans have not the slightest interest in constitutional theory and political philosophy, this was the essence, the ‘meat and drink’ of Mr Calhoun’s existence, expressed with such logic and clarity that his opponents, as well as listeners, were always fairly overwhelmed. Exclaimed one exasperated Charlestonian after an encounter with him: ‘I desire never to meet him again. I hate a man who makes me think too much.’
At the heart of Mr Calhoun’s argument in defence of States’ rights, and to demonstrate as well the true and original intent of the Constitution’s framers, were two cardinal tenets: State sovereignty and the Nullification Doctrine. Both were to solidify the Southern position in the 1850s and prepare the way for eventual secession.
Mr Calhoun’s position on the sovereignty of the States was essentially that of John Taylor of Caroline and John Randolph of Roanoke, all of them holding the belief that ‘sovereignty, like chastity [could not] be surrendered “in part.”’ ‘I maintain that sovereignty is in its nature indivisible. It is the supreme power in a State, and we might just as well speak of half a square, or half a triangle, as of half a sovereignty,’ he wrote. The argument was that the States, having first created the Articles of Confederation, from which they later seceded to create by solemn compact a new voluntary union, remained in every respect what they had been since 1776: separate, free, and independent States. As Mr James Kilpatrick, in his fine work The Sovereign States (1975), so eloquently puts it: ‘They surrendered nothing to the Federal government they created. Some of their powers they delegated; all of their sovereignty they retained. . . . There is a difference between “sovereignty” and “sovereign power.”’ Had not Mr Madison acknowledged in The Federalist, No. 39, that each State, in ratifying the Constitution, ‘is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act?’ It was the studied conclusion of Alexander Stephens, of Jefferson Davis, and of every Southern man of discernment and familiarity with the fundamental principles of the Constitution and the intent of its framers. And not the least of the arguments in behalf of State sovereignty was that, in the last resort, it is the prerogative of the States alone to create or dissolve our fundamental law.
But, what was to be done, if the Central government violated the Constitution (the compact) through a usurpation of power, thus converting the government into one of unlimited powers? The Doctrine of Nullification, having derived from the Kentucky and Virginia Resolutions (1798), from the Hartford Convention (1814), and even from Daniel Webster’s warning that state governments could ‘interpose between their citizens and arbitrary power,’ was hardly new. But then in 1828 and thereafter, it was given unique expression and added force and meaning by Mr Calhoun’s distinction between Government and Sovereignty, as well as his exposition on the relation of principal and agent.
The functions and powers of both governments, the Central and those of the States, were found, according to Mr Calhoun, in their respective legislative, executive, and judicial departments, these being two distinct and independent governments. The powers expressly delegated to the Central Government cannot be violated by the States, without violating the constitutional compact. The same is true with regard to the powers reserved to the States. For, what is the object of the Constitution, if not ‘to restrain the government, as that of laws is to restrain individuals?’ But there is a distinction, he says, between Government and Sovereignty; and that is, in respect to both governments, sovereignty per se resides in the people of the States respectively. The States having formed the Union with a written Constitution, and having granted certain of their powers to the Central government, their sovereignty was not surrendered. And what is the highest expression of this sovereignty? It is ‘the people of the several States, forming distinct political communities, and acting in their separate and sovereign capacity . . . .’ And the highest function of sovereignty? It is the power of creating, dissolving, or amending the Constitution, which the States reserved exclusively to themselves.
To properly understand the Doctrine of Nullification, however, recourse must be had to Mr Calhoun’s theory of the relation of a principal and its agent. But a common misconception of the doctrine must first be dispelled. And that is that whereas secession is a withdrawal from the Union, a final separation of a party (or parties) to the compact, ‘Nullification, on the contrary, presupposes the relation of principal and agent; the one granting the power to be executed,—the other, appointed by him with authority to execute it; and is simply a declaration on the part of the principal . . . that an act of the agent transcending his power is null and void.’ So, what was the object—the sole object—of nullification? It was, said Mr Calhoun, ‘to confine the agent (the Central government) within the limits of his powers, by arresting his acts transcending them, not with the view of destroying the delegated or trust power, but to preserve it, by compelling the agent to fulfill the object for which the agency or trust was created. . . .’ Nullification, then, viewed in its proper light and role, was the ultimate political device for avoiding the necessity for secession and for preserving the Union by due regard for the rights, powers, and interests of the contracting parties.
Now certain questions presented themselves, which demanded answers; questions that should be put to our people and ‘leaders’ today. Since the States were parties (the principals) to the creation of the Constitution (the compact), which, in turn, established the Central government (the agent), could the creature be greater than the creator? Or, in other words, if the Constitution is ‘the supreme law of the land’ and is over the three branches of the Central government, who or what is finally over the Constitution, if it is not the States, who alone under Article V have the power to change or abolish it? Had the States at any time renounced or abandoned their sovereignty with their creation of the Constitution and ‘ Union?’ Could the agent, then, be the sole judge of the extent of its own delegated, limited powers? And who was to judge of an infraction of the compact by the agent (including the Supreme Court), who was (and is) no party to the compact? In the words of Mr Kilpatrick, paraphrasing Mr Calhoun, ‘In any compact among equal parties, each party to the compact has an equal right to judge for itself if the compact be violated.’ And if one of the parties believes he has been wrongly treated in a truly grave and serious way, his remedy is to submit the dispute to the other parties for redress, but only as a last resort. The alternatives, of course, are tyranny on the one hand, or a resort to arms on the other.
How far was Mr Calhoun prepared to go to defend the rights and sovereignty of the States? In a speech delivered on 5 January 1837 on the subject of States’ rights, he said: ‘God forbid I should ever deny the glorious right of rebellion and revolution. Should corruption and oppression become intolerable, and not otherwise be thrown off—if liberty must perish, or the government be overthrown, I would not hesitate, at the hazard of life, to resort to revolution, and to tear down a corrupt government that could neither be reformed nor borne by freemen. But I trust in God things will never come to that pass.’
But come to that pass they did, and in the maelstrom known as ‘Reconstruction,’ the thing that Mr Calhoun had so long and greatly feared and warned against, ‘the great national consolidated democracy,’ the veritable engine of the numerical, unlimited majority, has now become the reality for all Americans, victors and vanquished alike, and their descendants as well. If, for this, most of ‘our leaders’ for over a century are to blame, we are yet reminded of the words of the Roman poet, Horace, who admonished us: ‘Populus stultus viris indignis honores saepe dat’ (Foolish people often give offices (or honors) to unworthy men).
What could be done when the government itself violated the law was what Mr Calhoun’s life was all about. What matters union, if liberty and law are dead? If, as we are taught, the hallmark of republican government is liberty under law, then clearly a re-examination of and return to first principles is sorely needed.