Against these conclusive arguments, as they seem to me, it is objected that, if one of the parties has the right to judge of infractions of the Constitution, so has the other; and that, consequently, in cases of contested powers between a State and the General Government, each would have a right to maintain its opinion, as is the case when sovereign powers differ in the construction of treaties or compacts; and that, of course, it would come to be a mere question of force. The error is in the assumption that the General Government is a party to the constitutional compact. The States, as has been shown, formed the compact, acting as sovereign and independent communities. The General Government is but its creature; and though, in reality, a government, with all the rights and authority which belong to any other government, within the orbit of its powers, it is, nevertheless, a government emanating from a compact between sovereigns, and partaking, in its nature and object, of the character of a joint commission, appointed to superintend and administer the interests in which all are jointly concerned; but having, beyond its proper sphere, no more power than if it did not exist. To deny this would be to deny the most incontestable facts and the clearest conclusions; while to acknowledge its truth is, to destroy utterly the objection that the appeal would be to force, in the case supposed. For, if each party has a right to judge, then, under our system of government, the final cognizance of a question of contested power would be in the States, and not in the General Government. It would be the duty of the latter, as in all similar cases of a contest between one or more of the principals and a joint commission or agency, to refer the contest to the principals themselves. Such are the plain dictates of both reason and analogy. On no sound principle can the agents have a right to final cognizance, as against the principals, much less to use force against them to maintain their construction of their powers. Such a right would be monstrous, and has never, heretofore, been claimed in similar cases.
That the doctrine is applicable to the case of a contested power between the States and the General Government, we have the authority, not only of reason and analogy, but of the distinguished statesman already referred to. Mr. Jefferson, at a late period of his life, after long experience and mature reflection, says,
With respect to our State and Federal Governments, I do not think their relations are correctly understood by foreigners. They suppose the former are subordinate to the latter. This is not the case. They are co-ordinate departments of one simple and integral whole. But you may ask, “If the two departments should claim each the same subject of power, where is the umpire to decide between them?” In cases of little urgency or importance, the prudence of both parties will keep them aloof from the questionable ground; but, if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best.
It is thus that our Constitution, by authorizing amendments, and by prescribing the authority and mode of making them, has, by a simple contrivance, with its characteristic wisdom, provided a power which, in the last resort, supersedes effectually the necessity, and even the pretext for force: a power to which none can fairly object; with which the interests of all are safe; which can definitively close all controversies in the only effectual mode, by freeing the compact of every defect and uncertainty, by an amendment of the instrument itself. It is impossible for human wisdom, in a system like ours, to devise another mode which shall be safe and effectual, and, at the same time, consistent with what are the relations and acknowledged powers of the two great departments of our Government. It gives a beauty and security peculiar to our system, which, if duly appreciated, will transmit its blessings to the remotest generations; but, if not, our splendid anticipations of the future will prove but an empty dream. Stripped of all its covering, the naked question is, whether ours is a federal or a consolidated government; a constitutional or absolute one; a government resting ultimately on the solid basis of the sovereignty of the States or on the unrestrained will of a majority; a form of government, as in all other unlimited ones, in which injustice, and violence, and force must finally prevail. Let it never be forgotten that, where the majority rules without restriction, the minority is the subject; and that, if we should absurdly attribute to the former the exclusive right of construing the Constitution, there would be, in fact, between the sovereign and subject, under such a government, no Constitution, or, at least, nothing deserving the name, or serving the legitimate object of so sacred an instrument.
How the States are to exercise this high power of interposition, which constitutes so essential a portion of their reserved rights that it cannot be delegated without an entire surrender of their sovereignty, and converting our system from a federal into a consolidated Government, is a question that the States only are competent to determine. The arguments which prove that they possess the power, equally prove that they are, in the language of Jefferson, “the rightful judges of the mode and measure of redress.” But the spirit of forbearance, as well as the nature of the right itself, forbids a recourse to it, except in cases of dangerous infractions of the Constitution; and then only in the last resort, when all reasonable hope of relief from the ordinary action of the Government has failed; when, if the right to interpose did not exist, the alternative would be submission and oppression on one side, or resistance by force on the other. That our system should afford, in such extreme cases, an intermediate point between these dire alternatives, by which the Government may be brought to a pause, and thereby an interval obtained to compromise differences, or, if impracticable, be compelled to submit the question to a constitutional adjustment, through an appeal to the States themselves, is an evidence of its high wisdom: an element not, as is supposed by some, of weakness, but of strength; not of anarchy or revolution, but of peace and safety. Its general recognition would of itself, in a great measure, if not altogether, supersede the necessity of its exercise, by impressing on the movements of the Government that moderation and justice so essential to harmony and peace, in a country of such vast extent and diversity of interests as ours; and would, if controversy should come, turn the resentment of the aggrieved from the system to those who had abused its powers (a point all-important), and cause them to seek redress, not in revolution or overthrow, but in reformation. It is, in fact, properly understood, a substitute,—where the alternative would be force,—tending to prevent, and, if that fails, to correct peaceably the aberrations to which all systems are liable, and which, if permitted to accumulate without correction, must finally end in a general catastrophe….
With every caution on my part, I dare not hope, in taking the step I have, to escape the imputation of improper motives; though I have, without reserve, freely expressed my opinions, not regarding whether they might or might not be popular. I have no reason to believe that they are such as will conciliate public favor, but the opposite, which I greatly regret, as I have ever placed a high estimate on the good opinion of my fellow-citizens. But, be that as it may, I shall, at least, be sustained by feelings of conscious rectitude. I have formed my opinions after the most careful and deliberate examination, with all the aids which my reason and experience could furnish; I have expressed them honestly and fearlessly, regardless of their effects personally, which, however interesting to me individually, are of too little importance to be taken into the estimate, where the liberty and happiness of our country are so vitally involved.
IX.
Nullification: Why the Critics Are All Wrong
An Exposition of the Virginia Resolutions of 1798
Judge Abel P. Upshur
1833
The full title of the pamphlet from which this selection is excerpted is An Exposition of the Virginia Resolutions of 1798; in a Series of Essays, Addressed to Thomas Ritchie, by a Distinguished Citizen of Virginia, Under the Signature of “Locke.” This pseudonymous series of essays is attributed to Judge Abel P. Upshur (1790–1844), whose career, as we noted in chapter 4, included service in the Virginia legis
lature, as a judge of the General Court of Virginia, and, in the early 1840s, as U.S. Secretary of State and Secretary of the Navy. Upshur’s important 1840 book, A Brief Enquiry into the True Nature and Character of Our Federal Government, is a refutation of Joseph Story’s nationalistic Commentaries on the Constitution of the United States (1833).
Here Upshur is at pains to demonstrate that, whatever special pleading might be advanced to the contrary, nullification is the only means by which the principles set forth in the Virginia Resolutions of 1798 can be enforced. Any lesser form of interposition is simply inadequate to their purpose. When he describes nullification as a constitutional remedy and contrasts it with revolution, he means that a nullifying state is not in fact overthrowing the constitutional order but operating within it. If anyone is overthrowing the constitutional order, it is a federal government that attempts to impose unconstitutional measures on the states.
The essays that follow, collected into a pamphlet, are addressed to Thomas Ritchie, who was Spencer Roane’s cousin and the editor of the Richmond Enquirer. To my knowledge, this pamphlet is appearing in print for the first time since its original publication in Philadelphia in 1833 (and subsequent periodical reprint in 1835). It is one of the most vigorous defenses of nullification, and among the most spirited replies to critics of the idea, ever written.
NO. I.
…Permit me, then, as a citizen neither very young nor wholly unconnected; as one who considers every thing which he cherishes in our institutions in the most imminent peril; as one who sincerely believes that you can form the public mind of Virginia, and that Virginia can control the destinies of this once happy Union, to entreat you to answer explicitly the following interrogatories. They are propounded, not in the spirit of a controversialist, but with a deep conviction that they involve the only principles upon which the rights of the States can be maintained, and of course the only security against a consolidated and essentially monarchical government:
1. Is there, or is there not, any principle in the Constitution of the United States, by which the States may resist the usurpations of the Federal Government; or are such usurpations to be resisted only by revolution?
2. If there be no such principle, is not the Federal Government as unlimited in its powers as any other Government, whatever be its form, whose encroachments upon the rights of the citizen can be repelled only by rebellion, or other application of physical force?
If you believe, as I am sure you do believe, that there is such conservative principle in the Constitution, then I beg the favour of you to point it out, and tell us in what manner we may render it available. In doing this, be pleased to answer—
3. Is not the passing a law by Congress which the Constitution does not authorise, a usurpation on the part of that body? And is not every such unconstitutional law absolutely void, as passed by a delegated authority, beyond the limits of that authority?
4. Are the States bound to submit to laws which are unconstitutional, and therefore void?
5. If the States are not so bound to submit, is not the particular State which refuses to submit, right in so doing?
6. If the recreant State be right in her refusal to submit, are not the other States wrong in compelling her to submit? Is it not oppression of the worst sort, to coerce obedience to usurped power?
The above questions are propounded upon the hypothesis that Congress may have actually passed a law palpably and dangerously violating the Constitution. And now be pleased to tell us in what manner the fact of such palpable and dangerous violation is to be ascertained? In doing this, be also pleased to answer—
7. Is there any common umpire established by the Constitution, to whom may be referred questions touching a breach thereof?
If there be such common umpire, be pleased to point it out.
8. If there be no such common umpire, does it not result from the necessity of the case, that each State must judge thereof for itself?
9. If a State, in the actual exercise of this right, should decide that any given act of Congress is a palpable and dangerous violation of the Constitution, is there any right of appeal from that decision?
10. If there be, does the appeal lie to any other authority than the other parties to the Constitution?
11. Who are these “other parties”? The States or the people?
Upon this last question, you are already so fully committed, that it is impossible to doubt your answer. I have, therefore, to ask you—
12. Is not the decision of every inferior tribunal of competent jurisdiction, obligatory and conclusive, until it is reversed? And if so, is not the decision of a State upon a constitutional question on which it has a right to decide, conclusive as to such State, until it is reversed by the other States, acting as such?
13. If it be thus conclusive, has the State a right to act upon its decision or not?
14. If it has no such right of action, is its right of judgment any thing more than a mere liberty of speech and of opinion, and, therefore, no available right at all?
15. If it has such right of action, is it to act by submitting to the usurped power, or by opposing it?
A man of your spirit, can give but one answer to this question. Then be good enough to tell us in what manner this opposition is to be made? In doing this, be pleased to answer—
16. Are petition, remonstrance and protest, any thing more than appeals to the oppressor, and therefore in no sense, to be called opposition to him? Or if it be opposition, and these petitions, remonstrances and appeals, should all be disregarded, is the matter to rest there?
17. If not, and farther resistance is to be made, ought not that resistance to be made in such form as to redress the wrong?
18. If so, can the wrong be redressed by the injured State going out of the Union? Does not this, on the contrary, increase the wrong as to her, by compelling her to relinquish all the advantages of the Union, to which she is fairly entitled, and at the same time, encourage the aggressors to persevere in the wrong, by withdrawing all opposition to them? Is not the “redress,” in this mode of seeking it, merely an additional wrong done to the injured party?
19. If so, what do you propose to substitute for it?
You perceive, sir, that I have, in all these questions, followed very closely, the Virginia Resolutions and Madison’s Report. They are the text upon which my future commentaries will be offered. I have done so on purpose, for you have always been an advocate of those documents, as being clearly orthodox; and as I entertain the same opinion of them myself, I am unfeignedly desirous to see by what process of reasoning, any two men of tolerable intellect, can be led to different conclusions from such principles. I confess that it seems to me exceedingly clear, that our Constitution is most worthless and tyrannical, if the usurpations of those who administer it, cannot be resisted by any means short of revolution. I have always considered the reserved powers of the States, as the only real check upon the powers of the Federal Government; and I have always considered it, not only the right, but the imperious duty of the States, so to apply that check, as not to dissolve the Union. And I have never been able to discover any mode of doing this, except by the positive refusal of the States to submit to usurpations, whilst, at the same time, remaining in the Union. They force the Federal Government back within the charter of its power. This seems to me an irresistible influence, from the principles indicated in the preceding interrogatories. Perhaps you can show me that these principles do not lead to Nullification? I shall be happy to be undeceived; but at present, I entertain no doubt, that that doctrine is the only one upon which the States can safely repose. It is easy to show that this is the legitimate result of the Resolutions of 1798. I shall endeavour to show this in a second letter, with which you will be shortly troubled. In the mean time, you will not only gratify me, but hundreds of others, by answering the foregoing interrogatories, distinctly, plainly, and directly. The views which I now indicate, have already been substantially presented to the public; bu
t, as I consider them of vital importance, I shall continue to press them under all the forms of which they are susceptible, until some one will condescend to prove them wrong….
NO. II.
In the letter which I addressed to you on the 2nd inst., I propounded to you within interrogatories, touching the great principles involved in the present measures of the Federal Government. I could not wait for your reply, even if there were better reasons than any which I can now discern, for expecting a reply at all. I do not expect it, and yet I venture to hope for it. You owe it to your own character, to your numerous patrons, and to the great cause in which you have professed to be a zealous labourer, to be no longer silent or mysterious, upon these important topics. Come out, I pray you, in a manner at once so distinct and unequivocal, as to leave no pretence, either to friend or foe, for accusing you of duplicity or timidity.
Nullification: How to Resist Federal Tyranny in the 21st Century Page 19
