We have thus endeavored, by a few plain considerations, to show, first, that the doctrine of nullification is not only unsanctioned by the Constitution, but wholly impracticable, and that its results, if it could be carried into effect, would be of the most disastrous character: – secondly, that the only semblance of argument, by which the Vice-President attempts to sustain it in the document before us, is entirely without foundation. It follows from the view which we have taken of the subject, that the controversy respecting the origin of the Constitution, which has been often agitated in connexion with this question, is in a great measure foreign to it. Whether the General Government had its origin in the will of the State Governments, of the people of the States, or of the people of the United States is a point of no importance in the present inquiry, for those who admit that it is the real and rightful Government of the country. For those, if any such there be, who wish to establish the proposition that the Union is a confederacy of independent States, subject to no common Government, the question of the origin of the Constitution is an essential one, because it is in the circumstances attending it, that they must look for the proofs of their theory. But for those who believe that that instrument is a social compact, and the Government created by it a real Government, it is unnecessary, for the present purpose, to go beyond that fact, which proves, of itself, that its acts are the law of the land, and that in respect to them there is no middle course between obedience and rebellion.
As respects the origin of the Constitution, we will therefore merely remark, without enlarging on the subject, that we agree with the Vice-President in the opinion that it derives its authority from the States acting as distinct communities, and not from the aggregate mass of the people of the United States. The latter theory receives some countenance from the opening words of the preamble: —We the people of the United States; – but is obviously inconsistent with the facts attending the formation and adoption of the Constitution. Throughout the whole proceedings, the States appeared as distinct communities. Those States, which did not at first approve the Constitution, considered themselves and were considered by the other States as at liberty to remain without the pale, and actually did so remain for some years. This could not have happened if all the States had previously constituted one people, that is, one body politic. In that case the decision of the body, in whatever form it might have been collected, must have been obligatory upon all the members. Indeed, the preceding instrument of Union, commonly called the Old Confederation, expressly recognises the sovereignty and independence of the States, and describes the Union as a league. The Congress which assembled under this Confederation was not a General Government, but a meeting of delegates or ambassadors, in which each State had an equal vote, and which merely recommended to the States the adoption of certain measures, which being adopted by them and in that case only, obtained the character and force of laws. It is obviously impossible to reconcile this condition of things with the theory, that the States, at the period immediately preceding the adoption of the Constitution, constituted one people. We find accordingly, that President J. Q. Adams, who, in his late Fourth of July Oration, professes the doctrine that the acts of Union which preceded the declaration of Independence combined the States into one people, and that they never existed as separate sovereignties, treats the old Confederation as a temporary departure from the true political system of the country. In other words, he admits that the character of it is inconsistent with his theory. But this Confederation, whatever may be thought of its value, undoubtedly determined for the time being the actual relation of the parties to it. There is reason to suppose, from the tenor of another late publication by Mr. Adams, that he considers the union of Great Britain and Ireland as a departure from the true political system of those countries; but he would probably not think of maintaining, as a consequence of that opinion, that Ireland is at this moment an independent State. On our view of the subject, therefore, the States, from the period of the Declaration of Independence to that of the establishment of the Constitution, existed, in form at least, as distinct communities, independent of each other, and, though confederated for certain purposes, not subject to a common Government. The Constitution, by which they subjected themselves to a common Government, was the act which gave them the character of one people. The form of distinct communities, under which they existed during the period alluded to, may have been, as we agree with President Adams that it was, an unfortunate expression of the substantial condition of the population of this continent; but this is a question not of substance but of form, and such undoubtedly was, for the time being, the form of their political existence.
We are therefore disposed to agree with the Vice-President in the opinion, that the parties to the great social compact, entitled the Constitution, were not the individual citizens composing the whole people of the United States, but the several distinct communities into which they are divided, and which were at that time, – to use the ordinary language, – sovereign and independent States. We may remark en passant that the phrase Sovereign State, which certain persons employ so frequently and appear to consider as pregnant with important political conclusions, though it may, perhaps, be sufficiently authorized by usage to be received as good English, is not, in the strict and proper use of language, admissible, and is therefore better avoided in all precise and scientific discussion. The word sovereign has the same etymology with supreme, of which it is another form, and properly implies, as that does, comparison with something else. Thus the Supreme Being is the highest of all beings: the Supreme Court is the highest of all the Courts: the Sovereign power in a State is the highest political authority. But States, being as such politically independent of each other, cannot in the nature of things stand towards each other in the relation of superiority or inferiority, and can of course be neither sovereign nor subject. We find, accordingly, that in the Declaration of Independence, – a document remarkable throughout for great propriety in the use of language, – although it was once quoted by Governor Hamilton, on some public occasion, as saying that the United Colonies are, and of right ought to be, free, sovereign and independent States, the word sovereign is not employed. The language used is that the colonies are, and of right ought to be, free and independent States. As applied to States, the word sovereign, if it have any meaning at all, can only mean independent. In this sense it is no longer applicable to the several States composing the Union, which, since the adoption of a common Government, are not politically independent of each other. This is not a merely verbal criticism. Words are things; and we strongly suspect that the frequent use of this incorrect, ambiguous, and, – to recur again to the language of Governor Lumpkin, —mystical phrase Sovereign State, has created a good deal of embarrassment, which the substitution of the more correct and intelligible term independent would have in part prevented.
To return, however, from this digression: – although we agree with the Vice-President in the opinion, that the Constitution had its origin in the will of the States acting as distinct communities, we cannot acquiesce in the conclusions which he deduces from this fact, or admit that, for the present purpose, it makes any difference whatever in the case. Independent States may form themselves into a body politic, as well as independent individuals. Such is in fact the historical origin of most of the communities now existing throughout the world. They are in general aggregations of smaller communities, previously existing in an independent form. Where the States, so forming themselves into one body politic, retain for certain purposes a distinct name and character, their position in the body politic, of which they form a part, is precisely the same with that of the individual citizens in an ordinary community. This, as we have seen, is fully and distinctly admitted by Mr. Calhoun himself. He admits that the General Government is as fully and properly a Government as are the State Governments themselves, and that the relation between the General Government and the States is precisely the same with that between the Governments and citizens of the States, or in general between the Governments and citizens of any other community. How then can he possibly claim for the States a right of annulling the acts of the General Government, when he certainly would not think of claiming such a right for the citizens of the several States, or of any other political societies, in reference to their respective Governments?
It may be true, as Mr. Calhoun intimates, that a State Government has no right to enforce its construction of the Constitution of the State against the people of the State, appearing in their sovereign capacity; or, more generally, that in our theories of government the people of any country, acting in their sovereign capacity, have a right to construe, alter or totally destroy the Constitution at discretion. But supposing this to be true, would it follow that every individual citizen has a right to annul the Constitution, or any part of it, at discretion? Would Mr. Calhoun himself think of drawing such a conclusion, in reference to the individual citizens of the States, or of other communities? – Undoubtedly not. How then can he with the least regard for consistency draw it in reference to the individual States, which, as he tells us himself, stand in precisely the same relation to the General Government, in which the individual citizens of the States and of other communities stand in relation to their respective Governments?
The right claimed for the States of annulling the Constitution and laws of the United States, must, says the Vice-President, belong to them, unless they have expressly surrendered or transferred it. We have already seen, that no member of a body politic, whether composed of States or individuals, does or can possess a right to annul or repeal the law; and that the contrary proposition involves a contradiction in terms. Were the Constitution wholly silent on the subject, the mere fact that they had formed themselves, by a solemn social compact, into one great people, subject to a common Government, though retaining, as distinct communities, no inconsiderable share of the legislative power, – this fact alone, we say, would have carried with it a peremptory obligation upon the States to obey the law as construed by the courts of justice, excepting in the extreme cases that justify resistance. It would, however, be natural enough for independent States, in forming a compact of this description, to introduce an expression of this obligation; and it may be a matter of curiosity to consider for a moment what language could have been used, in order to express the idea in the most direct and unequivocal manner. To one who was seeking for such an expression, some such phrase as the following would probably occur. No State shall have a right, either in the exercise of the sovereign (constitution-making) or the ordinary legislative (law-making) power, to annul or arrest the execution of this Constitution, or any law made in pursuance of it by the General Government. This, we say, or something like it would probably be the language, which would occur to any one who was seeking for the most direct and unequivocal expression of the idea, that the States have no right to set up their authority against that of the General Government. Now the language of the Constitution on this subject is still more decisive, because it expresses the same ideas conveyed by that here supposed in two forms, the one positive and the other negative. This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land. This positive declaration carries with it, as we have said, by implication, the full import of the negative one which we have supposed above: but in order to make assurance doubly sure, the framers of the Constitution added a negative declaration, which, though more concise than the one we have supposed, is of precisely the same meaning; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding. This declaration, we repeat, though more concise, is equivalent in meaning to the more extended expression of the same idea, which we have imagined as the most direct and unequivocal that could possibly be used. —Any thing in the laws of any State to the contrary notwithstanding.– No State, in the exercise of its ordinary law-making power, shall have a right to annul or arrest the execution of this Constitution, or the laws made in pursuance thereof by the United States. Any thing in the Constitution of any State to the contrary notwithstanding.– No State, in the exercise of her sovereign or constitution-making power; no State, acting in her sovereign capacity, shall have a right to annul or arrest the execution of this Constitution, or the laws made in pursuance thereof by the United States. Any act that may be done for this purpose is to be, ipso facto, null and void. The judges shall not be bound by it. Will the Vice-President or any person of plain common sense undertake to say, that this is not a correct paraphrase of the negative clause in the Constitution? If it be admitted that it is, will the Vice-President or any man of plain common sense undertake to say, that if the framers of the Constitution had employed the language of this paraphrase instead of the concise equivalent phrase which they used, there could be any doubt respecting the character of the present proceedings in Carolina? There is, in fact, no doubt about it.
It is painful to see a person so distinguished for talent, and, as we have hitherto been willing to believe, for uprightness of purpose, as Mr. Calhoun is, attempting to escape by a side path from the plain and obvious meaning of this clause, which he shrinks from meeting in the face. He alludes to several propositions that had previously been submitted to the Convention which framed the Constitution, for the purpose of making the acts of the General Government paramount to those of the States; and because these were rejected, he concludes, that the one which was adopted is not to be carried into effect according to its plain and natural sense. Is this fair argument? Is it even plausible? It is impossible, within the narrow compass of an article, to go fully into every part of this vast subject; but any one, who will take the trouble to examine the proceedings of the Convention, will readily see why they rejected the first propositions, and why they adopted the last. As the States retain a very considerable portion of the legislative power, and remain, for many purposes, distinct communities, it was thought important that, in regard to the exercise of the powers so retained, they should not be under the formal control of the General Government: – in other words, that so far as they were sovereign, they should not be subject. Hence the rejection of the proposal of General Hamilton to give the President a negative on all State laws; and hence subsequently the amendment of the Constitution, by which it was ordained that no State should be sued at law. This was all perfectly proper: but it was also essential that the paramount authority of the acts of the General Government should be secured, and the object was attained by the proposition finally adopted, which declares distinctly, both in a positive and negative form, that such is the understanding of the Convention, and leaves it to the Courts of Justice to enforce the provision. This plan is just as effectual as the other would have been, because the decisions of the courts may and must be sustained, if the occasion require it, by the whole military force of the country; while at the same time it removes the possibility of any actual collision between the two law-giving powers, in the regular performance of their functions. Each exercises a complete and uncontrolled discretion as to the objects and extent of its own legislation; – puts its own construction upon its own powers; – passes, in short, any laws which it deems constitutional and expedient. Neither, in this form of action, has any control over the proceedings of the other. – The General Government has no more right to annul an act of the State of South Carolina, than the State of South Carolina has to annul an act of the General Government. But when the proceedings of the two powers come into collision, – as it may well be supposed that, under such circumstances, they occasionally will, – the silent operation of the Courts of Justice gives the ascendancy, where the Constitution declares that it belongs, to those of the General Government. The provision, like most others in the Constitution, is obviously the simplest and best that could have been adopted. The rejection of other propositions of similar tendency only proves that the Convention considered the subject very maturely, and successively laid aside the several imperfect and inexpedient methods of effecting the great object in question, which were proposed to them, until they finally hit upon one that was satisfactory.
In alluding to this decisive clause in the Constitution, the Vice-President omits entirely the negative part of it, and quotes it in the following form: —This Constitution and the laws made in pursuance thereof shall be the supreme law of the land. He then adds that he shall not go into a minute examination of its effect, the subject having been already so frequently and so ably investigated, that he deems it unnecessary. This might have been a good reason for not discussing it at all; but if it was expedient to discuss it at all, it seems hardly proper that the most material point in the argument should be passed over in silence. The omission looks very much like conscious weakness. For ourselves, we have met with no suggestion, whether made on this or any former occasion, which, according to our views, has thrown even the shadow of a doubt upon the meaning of the passage. The pretext for a question would probably be sought in the qualification, made in pursuance of the Constitution. It may be said that, under this qualification, laws not made in pursuance of the Constitution are not paramount to those of the States. But this phrase has obviously no bearing on the point in question. The meaning is, that the Constitution and the laws of the United States, made in the manner prescribed by it, or for the purpose of carrying it into effect, shall be the paramount law of the land, just as in the other part of the phrase it is said, that treaties made under the authority of the United States shall also form a part of this paramount law. In both cases, there is no reference to the question, whether the law or the treaty has been made in a rightful or wrongful exercise of the legislative or treaty-making power. It is merely affirmed that the acts of the General Government, performed in the exercise of their powers under the Constitution, are paramount to those of the States. The same language is used in the Ordinance of Nullification, which declares that 'this Ordinance and the laws made in pursuance thereof by the legislative power of the State, shall be binding on the citizens.' It is obviously not intended, that the citizen shall judge for himself whether the laws so made are or are not agreeable to the tenor of the Ordinance, but merely that the laws which the assembly, – acting under this Ordinance or in consequence of the recommendation contained in this Ordinance, – may pass, shall be obligatory.
This qualification, which has sometimes, we believe, been regarded as very significant, has therefore no bearing on the point in question, nor is it, as Mr. Calhoun imagines, by the clause conferring on the Supreme Court the power of deciding in all cases arising under the Constitution, that the States are supposed to be deprived of their right of putting their own construction upon the powers of the General Government. The right of deciding on the constitutionality of the laws of the United States, belongs, from the nature of the case, to the courts, and is expressly given to the Supreme Court by the Constitution; but the possession of this right by the courts does not carry with it that of deciding, that an act of the General Government is of paramount authority to one of a State. On this subject, we are quite surprised at the looseness of the Vice-President's reasoning, and its apparent inconsistency with the general scope of his doctrine. 'Where there are two sets of rules,' he remarks, 'prescribed in reference to the same subject, one by a higher and the other by an inferior authority, the judicial tribunal called on to decide the case, must unavoidably determine, should they conflict, which is the law; and that necessarily compels it to decide that the rule prescribed by the inferior power, if, in its opinion, inconsistent with that of the higher, is void.' – This doctrine is strange indeed in the mouth of the Prince of nullifiers and great champion of State Sovereignty. Where, we would ask, has the Vice-President learned that the State Governments are inferior and the General Government a superior power? – We must inform him, that without being nullifiers, and without believing in the doctrine of State Sovereignty, we make no such admission for Massachusetts. The State and General Governments, each of which exercises, independently of the other, a portion of the sovereign or legislative power of the people, are neither superior nor inferior to each other: they are precisely on a level. The right of deciding on the constitutionality of the acts of the General Government would no more of itself authorize the judges to decide that they are paramount to those of the States, than it would authorize them to decide that the acts of the States are paramount to those of the General Government. The two Governments, considered as distinct legislative powers, are on a footing of perfect equality. The question, which shall prevail when their acts come into collision, must be decided by the nature of the case, and by the specific provisions of the Constitution. It follows, from the nature of the case, that the acts of the General Government, which represents the body politic of which all the States are members, must have an authority paramount to any other existing in the community; and this conclusion is confirmed by the letter of the Constitution, which expressly declares, in so many words, that the acts of the General Government are paramount to those of the States. It was by forming themselves into one body politic, and by expressly stipulating with each other in the compact by which this body politic was formed, that the acts of the General Government representing it should be paramount to their own, that the States surrendered the right of putting their own construction on the powers of the General Government; and this is the foundation of the authority possessed by the judges, when, by virtue of a different clause, they take cognisance of cases arising under the Constitution, to decide, as they undoubtedly must and would do, that any act of a State, whether in its sovereign or legislative capacity, pretending to annul an act of the General Government, is of itself, ipso facto, null and void.
Finally, says the Vice-President, 'it belongs to the authority which imposes an obligation, to declare its extent, as far as those are concerned on whom the obligation is placed. The obligation upon the individual citizens of the United States to obey the laws, results from the acts of their respective States, by which they became parties to the Union; and a similar act of the same authority declaring the extent of the obligation must be of equal authority, and of course releases the citizen from the obligation which he came under, by the effect of the former one.'
This is a point of great importance. It is here admitted, that the individual citizens are under an obligation to obey the law which the State is attempting to annul; but it is affirmed, that they may be discharged from this obligation by an act of the State annulling the law, because the same authority which imposed the obligation upon them has a right to release them from it. It is a matter of high concern for all who wish to know, and knowing, mean to perform their duties, to inquire how far this principle is true, or, if true, applicable to the present case.
The same authority which imposes an obligation must of necessity possess the right of dispensing with it, or declaring its extent. This principle, properly explained, may be received as true. But what is the authority which imposes the obligation, – for example, to execute a contract? Does the Vice-President suppose that it is the will of the parties who make the contract, and that the same will which brought each of them under the obligation, can, at any time, release him from it? Does he suppose, for example, that it is the will of the two parties to a contract of marriage which imposes upon them the obligations incident to that contract, and that either party can, by a mere act of the will, exempt him or herself from these obligations? We are quite sure, that Mr. Calhoun would not himself think of maintaining a doctrine so monstrous. What then is the authority which imposes the obligation? The answer is plain. The authority imposing the obligation is the one which makes the law, from which the obligation results. In ordinary cases, when the obligation results from the laws of the land, the authority imposing it is the Government of the country. In the case of contracts between parties not subject to the same Government, the obligation results from the moral law, and is imposed by the will of the great Lawgiver of the Universe. The present is the case of an obligation resulting from the law of the land. The citizens of South Carolina are bound to pay the duties required by the existing Tariff, because it is a part of the law of the land. They were brought under the obligation to obey the laws of the United States, by the act of the State of South Carolina, by which she and twelve other States formed themselves into one body politic, under a common Government, just as an individual is brought under the obligations resulting from a contract of marriage, by his own will to enter into it. But the authority imposing the obligation is in both cases not the will of the party, but the Government of the country. The Government has the same right to repeal or alter the law which it had to enact it, and in this sense the principle is true, that the same authority which imposes the obligation, has a right to dispense with it or to declare its extent. But the citizens of South Carolina, whether in their individual or joint capacity, have no more right to exempt themselves, by any act of their own, from the obligation to obey the laws which they have come under by adopting the Constitution, or to declare its extent, than they have to exempt themselves by their own act from the obligation to support their wives and children, which they have come under by entering into contracts of marriage. Nor does it make any difference that the act, by which the citizens of Carolina became parties to the social compact, was performed by them in their joint and not in their individual capacity. There are many cases, in which individuals are brought under obligations of various kinds by acts partly or entirely independent of their own will. A child is brought under the obligations which he owes to his parents by an act of theirs, over which he had no control. Will it be pretended that they have a right to relieve him from these obligations, or to determine their extent? A husband is liable for his wife's debts, – a principal is bound by the acts of his agents, – a ward by those of his guardian: – will it be pretended that the wife, the agent, the guardian has, either in law or morals, a dispensing or interpreting power over the obligations which they have brought upon other individuals by their acts? No person of sound mind could hazard so extravagant an assertion. Just as preposterous would it be to imagine, that because the citizens of Carolina were brought under their obligation to obey the laws by an act of the State, that is, of themselves in their joint capacity, they have therefore a right, acting in their joint capacity, to exempt themselves individually from this obligation. Common sense revolts at the suggestion. It is really wonderful, that principles so palpably erroneous should be depended on by a man like Mr. Calhoun, as a justification for measures of such transcendent importance and fearful tendency.
The principle that the same authority which imposes an obligation may dispense with or determine its extent is therefore, rightly understood, a true and salutary one: but instead of sustaining the Vice-President's doctrine, it completely refutes the very point which it was employed to establish. The authority which imposes upon the citizen the obligation to pay the duties is the Government of the country; and the same authority only can, by repealing or modifying the law, release him from this obligation, or in any way affect its character.