Nullification: How to Resist Federal Tyranny in the 21st Century
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The Massachusetts legislature was not alone. The Connecticut legislature declared that “the conduct of his excellency the governor in refusing to order the militia of this State into the service of the United States on the requisition of the Secretary of War meets with the entire approbation of this Assembly.”12 U.S. Senator Timothy Pickering of Massachusetts expressly employed the language of the Principles of ’98: “How are the powers reserved to the States respectively, or to the people, to be maintained, but by the respective States judging for themselves, and putting their negative on the usurpations of the general government?”13
As the war proceeded and a still more stringent embargo than that of Jefferson was imposed, the embargo controversy reemerged. State dissent once again adopted the language and concepts of the Principles of ’98. The Massachusetts legislature condemned the embargo as unconstitutional and reaffirmed that state’s right to protect its people against unconstitutional federal laws:
A power to regulate Commerce is abused, when employed to destroy it; and a manifest and voluntary abuse of power sanctions the right of resistance, as much as a direct and palpable usurpation. The sovereignty reserved to the States, was reserved to protect the Citizens from acts of violence by the United States, as well as for purposes of domestic regulation. We spurn the idea that the free, sovereign and independent State of Massachusetts is reduced to a mere municipal corporation, without power to protect its people, and to defend them from oppression, from whatever quarter it comes. Whenever the national compact is violated, and the citizens of this state are oppressed by cruel and unauthorized laws, this legislature is bound to interpose its power, and wrest from the oppressor his victim.14
As if the appeal to the Principles of ’98 were not clear enough in the passage just quoted, the Massachusetts legislature went on to make express reference to Madison, who was now the President: “This is the spirit of our Union, and thus has it been explained by the very man, who now sets at defiance all the principles of his early political life.” It then listed its grievances, noting that the laws that oppressed them were “unconstitutional and void”:
Resolved, That “the act laying an embargo on all Ships and vessels in the Ports and harbors of the United States,” passed by the Congress of the United States on the 16th day of December, 1813, contains provisions not warranted by the Constitution of the United States, and violating the rights of the People of this Commonwealth.
Resolved, That the Inhabitants of the State of Massachusetts, have enjoyed, from its earliest settlement, the right of navigating from Port to Port within its limits and of fishing on its coasts; that the free exercise and enjoyment of these Rights are essential to the comfort and subsistence of a numerous class of its citizens; that the power of prohibiting to its Citizens the exercise of these rights was never delegated to the general government, and that all Laws passed by that Government, intended to have such an effect, are therefore unconstitutional and void.
Resolved, That the people of this commonwealth, “have a right to be secure from all unreasonable searches and seizures of their Persons, Houses, Papers, and all their Possessions;” that all Laws rendering liable to seizure the property of a Citizen at the discretion of an Individual, without warrant from a Magistrate, issued on a complaint, supported on oath or affirmation, under the pretence that such property is “apparently on its way towards the territory of a foreign nation or the vicinity thereof,” are arbitrary in their nature, tyrannical in their exercise, and subversive of the first principles of civil liberty.15
From a political point of view, the War of 1812 wound up essentially a draw, and the Treaty of Ghent signed in December 1814 reestablished the status quo ante bellum. From a military point of view, it was a British rout. As a result, Congress seriously entertained the prospect of military conscription. The constitutional objections, in turn, were not long in coming.16 The legislature of Connecticut, for instance, described the ensuing bill as “not only intolerably burdensome and oppressive, but utterly subversive of the rights and liberties of the people of this State, and the freedom, sovereignty, and independence of the same, and inconsistent with the principles of the constitution of the United States.” Were the bill passed, said the legislature, “it will become the imperious duty of the Legislature of this State to exert themselves to ward off a blow so fatal to the liberties of a free people.”17 The bill never did pass, but the very possibility that it could pass prompted the legislature to issue the following resolution: “That in case the plan and bill aforesaid, or any other bill on that subject, containing the principles aforesaid, shall be adopted, and assume the form of an act of Congress, the Governor of this state is hereby requested forthwith to convoke the General Assembly; and, to avoid delay, he is hereby authorized and requested to issue his proclamation, requiring the attendance of the members thereof at such time and place as he may appoint, to the end that opportunity may be given to consider what measures may be adopted to secure and preserve the rights and liberties of the people of this state, and the freedom, sovereignty and independence of the same.”18
Daniel Webster likewise opposed the measure, and urged a similar remedy. Webster, who would later represent Massachusetts in both the House of Representatives and the Senate, and who was then serving as a U.S. congressman from New Hampshire, delivered in December 1814 one of the most effective speeches of a political career known for elegant oratory. Military conscription, he thundered, was incompatible with both the Constitution and the principles of a free society. It was, as twentieth-century conservatives like Russell Kirk would later argue, a case of government run completely amok, treating the citizens as if their very lives could be disposed of by politicians. “Where is it written in the Constitution,” he demanded to know, “in what article or section is it contained, that you may take children from their parents, and parents from their children, and compel them to fight the battles of any war in which the folly or the wickedness of government may engage it?”19
Now if there is one thing Daniel Webster is remembered for in his speaking career, it is his devotion to and defense of a strong and indivisible American Union. His famous exchanges in the U.S. Senate with Robert Hayne and John C. Calhoun, in which he defended a nationalist theory of the Union that consigned the states to a distinctly subordinate position, are among his best-known speeches. (Contrary to popular legend, Webster was in fact the clear loser in the famed Webster-Hayne debate, whether from the point of view of public opinion, the press, or the Senate.)20 Yet what did Webster think should be done if the conscription bill should pass? In that case, he said, it would be
the solemn duty of the State Governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist; and their highest obligations bind them to the preservation of their own rights and the liberties of their people. I express these sentiments here…because I shall express them to my constituents. Both they and myself live under a constitution which teaches us that “the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind” (New Hampshire Bill of Rights). With the same earnestness with which I now exhort you to forbear from these measures, I shall exhort them to exercise their unquestionable right of providing for the security of their own liberties.21
Thus even Daniel Webster, the great nationalist, called for interposition, the central theme of the Resolutions of ’98.
Although the conscription bill did not pass, the federal government did enact a bill for the enlistment of minors. The legislature of Connecticut promptly passed An Act to Secure the Rights of Parents, Masters, and Guardians, which described the federal government’s measure as “repugnant to the spirit of the constitution of the United States, and an unauthorized interference with the laws and rights of this State.” The bill required judges to release on habeas corpus any minors enlisted without the
consent of their parents. Anyone trying to remove a minor from the state for this purpose was subject to fine and imprisonment. Massachusetts followed suit.22
We encounter favorable references to the Principles of ’98 in still other northern states. Thus in 1820, in the midst of a confrontation with the Second Bank of the United States, the Ohio legislature declared: “Resolved by the General Assembly of the State of Ohio, That in respect to the powers of the governments of the several states which compose the American Union, and the powers of the Federal Government, this General Assembly do recognize and approve the doctrines asserted by the Legislatures of Virginia and Kentucky, in their resolutions of November and December, 1798, and January 1800—and do consider that their principles have been recognized and adopted by a majority of the American people.” Immediately preceding the Ohio legislature’s resolutions was appended a report that described the election of Thomas Jefferson in 1800 as a referendum on the Federalists, who had imposed the Alien and Sedition Acts on the country, and an indication of popular support for the Principles of ’98:
The States and the People recognized and affirmed the Doctrines of Kentucky and Virginia, by effecting a total change in the administration of the Federal Government [i.e., by replacing the Federalists with the Republicans]. In the pardon of Calender [sic], convicted under the Sedition Law, and in the remittance of his fine, the new Administration unequivocally recognized the decision and the authority of the States and of the people. Thus has the question whether the Federal Courts are the sole expositors of the Constitution of the United States, in the last resort or whether the States, “as in all other cases of compact among parties having no common judge,” have an EQUAL RIGHT to interpret that Constitution FOR THEMSELVES, where their sovereign rights are involved, been decided against the PRETENSION OF THE FEDERAL JUDGES, by the people themselves, the true source of legitimate power.23
Nine years earlier, the legislature of Pennsylvania had approved a resolution whose indebtedness to the Principles of ’98 should be obvious:
The people of the United States by the adoption of the federal constitution established a general government for special purposes, reserving to themselves respectively, the rights and authorities not delegated in that instrument. To the compact thereby created, each state acceded in its character as a state, and is a party. The act of union thus entered into being to all intents and purposes a treaty between sovereign states, the general government by this treaty was not constituted the exclusive or final judge of the powers it was to exercise; for if it were so to judge then its judgment and not the constitution would be the measure of its authority.24
In 1826, the legislature of Virginia expressly renewed its support for the Virginia Resolutions of 1798 and Madison’s Report of 1800, in light of the federal government’s commitment to federally funded internal improvements without a constitutional amendment authorizing them. It also imposed a series of tariffs for the protection of domestic manufacturing that would benefit one section of the country at the expense of another. The principles asserted in those immortal documents, the legislature declared, “apply with full force against the powers assumed by Congress” in its own day.25 The legislature renewed this protest the following year.
The confrontation between the federal government and South Carolina in 1832–1833 is typically the only time the standard version of American history makes reference to the Principles of ’98 in the years following the Virginia and Kentucky Resolutions. We need not spend much time on historical background, since the story is a relatively familiar one compared to the other episodes we have covered thus far. The controversy stemmed from the federal government’s protective tariff policy, culminating in the “Tariff of Abominations” of 1828. Many southerners believed the South suffered most of the losses from this policy, and the North reaped most of the gains. Southerners relied on sales in the world market for much of their produce, so protective tariffs in the United States could not help them. Meanwhile, the tariffs forced them to pay more for manufactured goods, and by discouraging Americans from buying foreign products, the tariffs deprived foreigners of the wherewithal with which to purchase southern exports and could lead to destructive economic retaliation.
Numerous southern legislatures condemned the protective tariff throughout the 1820s. As the legislature of North Carolina explained in its own solemn protest in 1828, “Manufactures, in the United States, are not an object of general interest but of local interest; and yet they have received from the Government, not only a moderate and just encouragement, under the operation of a tariff of duties on imports, for purposes of revenue, but a protection by an enormous duty upon importations; which palsies every effort of the agriculturist, withers the product of his industry, and greatly impairs foreign commerce.”26 South Carolina’s Thomas Cooper described the tariff as “a system, whose effect will be to sacrifice the south to the north, by converting us into colonies and tributaries—to tax us for their own emolument—to claim the right of disposing of our honest earnings—to forbid us to buy from our most valuable customers—to irritate into retaliation our foreign purchasers, and thus confine our raw material to the home market—in short to impoverish the planter, and to stretch the purse of the manufacturer.”27
The South’s constitutional argument against the protective tariff was twofold. First, the Constitution envisioned the levying of tariffs for the purpose of raising revenue to meet government expenses, not for the purpose of granting protected status to domestic industry at the expense of consumers. Second, the Constitution called for government activity to be carried out with an eye to the general welfare, not the particular welfare of one section. The protective tariff, it seemed clear, involved the enrichment of northern industry at the expense of southern agriculture, and thus violated the general welfare clause. The South, said sometime senator and Jackson Administration vice president John C. Calhoun, was perfectly content to allow the North the incidental protection that even a revenue tariff would afford, but anything beyond this imposed a heavy and unfair burden on the South.
Perhaps in order to deflect attention from the merits of Calhoun’s arguments on nullification, proponents of centralized government have sought to demonize the man himself, noting with gleeful satisfaction his support for the institution of slavery. We are to understand that a supporter of slavery cannot have anything of value to say, and that anything he does say is probably tainted by a desire to protect and expand slavery. But while Calhoun indeed did support slavery, so did Andrew Jackson, the slaveholding southern president who opposed both nullification and Calhoun himself.28 Such critics are apparently unaware that northern abolitionists were known to refer to Calhoun’s principles themselves, even citing him by name, in support of their own struggles against the fugitive slave laws.29 Someone evidently forgot to tell them that they were not allowed to read or cite the wicked Calhoun, or that these ideas were all about protecting slavery. In this book, we leave aside the bigoted and childish nonsense that views everything southern as disreputable and dishonest, and adopt instead the forbidden course of following the abolitionists and treating the ideas on their merits.30
In 1828 Calhoun drafted the South Carolina Exposition and Protest. The Exposition was a lengthy constitutional and economic criticism of the federal government’s tariff policy as well as a vigorous defense of nullification as a legitimate state response. The Protest, a brief and separate document condemning the federal government’s tariff policy as unconstitutional, was approved by the South Carolina legislature. If relief was not forthcoming, these documents suggested, the state could well resort to nullification.
Calhoun’s relationship with Andrew Jackson had been deteriorating throughout the President’s first term, and indeed Calhoun had resigned as vice president by the end of 1832. He returned to South Carolina, where he filled an open U.S. Senate seat and opposed President Jackson in the open. The Tariff of 1832 had brought no real relief from the protective tariff policy that numerous southe
rn legislatures considered constitutionally dubious. South Carolina elected delegates to a special convention that voted to nullify the tariffs of 1828 and 1832, declaring that the state’s noncompliance would go into effect on February 1, 1833. Jackson responded with his famous Proclamation of December 10, 1832, that condemned nullification and warned South Carolina to desist from its course.
South Carolina did no such thing. To the contrary, its legislature protested what it considered the intimidating words and actions of President Jackson: “Resolved, That the principles, doctrines and purposes, contained in the said proclamation are inconsistent with any just idea of a limited government, and subversive of the rights of the states and liberties of the people.” To the President’s implicit threat to use force against his own people, South Carolina replied that “while this legislature has witnessed with sorrow such a relaxation of the spirit of our institutions, that a President of the United States dare venture upon this high handed measure, it regards with indignation the menaces which are directed against it, and the concentration of a standing army on our borders—that the state will repel force by force, and relying upon the blessings of God, will maintain its liberty at all hazards.”31
In early 1833, as the fateful date approached, Jackson secured passage by Congress of the Force Bill, which authorized the use of force against South Carolina should it not collect the tariff in compliance with federal law. An ultimate collision was averted when a compromise was reached whereby the tariff would be gradually lowered over the next ten years. For good measure, South Carolina nullified the Force Bill.
The usual moral of the story is that no one state can successfully stand up to the federal government. I draw a different moral. South Carolina stared down the federal government and won for the South a program of tariff relief it might otherwise not have received. The compromise reached between the federal government and South Carolina demonstrates the value of nullification, not its fruitlessness.