the States, is not the whole Union a rope of sand? Are we not thrown
back again precisely upon the old Confederation?
It is too plain to be argued. Four-and-twenty interpreters of
constitutional law, each with a power to decide for itself, and none
with authority to bind any body else, and this constitutional law the
only bond of their union! What is such a state of things but a mere
connection during pleasure, or to use the phraseology of the times,
during feeling? And that feeling, too, not the feeling of the people,
who established the Constitution, but the feeling of the State
governments.
In another of the South Carolina addresses, having premised that the
crisis requires "all the concentrated energy of passion," an attitude of
open resistance to the laws of the Union is advised. Open resistance to
the laws, then, is the constitutional remedy, the conservative power of
the State, which the South Carolina doctrines teach for the redress of
political evils, real or imaginary. And its authors further say, that,
appealing with confidence to the Constitution itself, to justify their
opinions, they cannot consent to try their accuracy by the courts of
justice. In one sense, indeed, sir, this is assuming an attitude of open
resistance in favor of liberty. But what sort of liberty? The liberty of
establishing their own opinions, in defiance of the opinions of all
others; the liberty of judging and deciding exclusively themselves, in a
matter in which others have as much right to judge and decide as they;
the liberty of placing their own opinion above the judgment of all
others, above the laws, and above the Constitution. This is their
liberty, and this is the fair result of the proposition contended for by
the honorable gentleman. Or, it may be more properly said, it is
identical with it, rather than a result from it. * * *
Sir, the human mind is so constituted, that the merits of both sides of
a controversy appear very clear, and very palpable, to those who
respectively espouse them; and both sides usually grow clearer as the
controversy advances. South Carolina sees unconstitutionality in the
tariff; she sees oppression there also, and she sees danger.
Pennsylvania, with a vision not less sharp, looks at the same tariff,
and sees no such thing in it; she sees it all constitutional, all
useful, all safe. The faith of South Carolina is strengthened by
opposition, and she now not only sees, but resolves, that the tariff is
palpably unconstitutional, oppressive, and dangerous; but Pennsylvania,
not to be behind her neighbors, and equally willing to strengthen her
own faith by a confident asseveration resolves, also, and gives to every
warm affirmative of South Carolina, a plain, downright, Pennsylvania
negative. South Carolina, to show the strength and unity of her opinion,
brings her assembly to a unanimity, within seven voices; Pennsylvania,
not to be outdone in this respect any more than in others, reduces her
dissentient fraction to a single vote. Now, sir, again, I ask the
gentleman, What is to be done? Are these States both right? Is he bound
to consider them both right? If not, which is in the wrong? or, rather,
which has the best right to decide? And if he, and if I, are not to know
what the Constitution means, and what it is, till those two State
legislatures, and the twenty-two others, shall agree in its
construction, what have we sworn to, when we have sworn to maintain it?
I was forcibly struck, sir, with one reflection, as the gentleman went
on in his speech. He quoted Mr. Madison's resolutions, to prove that a
State may interfere, in a case of deliberate, palpable, and dangerous
exercise of a power not granted. The honorable member supposes the
tariff law to be such an exercise of power; and that consequently a case
has arisen in which the State may, if it see fit, interfere by its own
law. Now it so happens, nevertheless, that Mr. Madison deems this same
tariff law quite constitutional. Instead of a clear and palpable
violation, it is, in his judgment, no violation at all. So that, while
they use his authority in a hypothetical case, they reject it in the
very case before them. All this, sir, shows the inherent futility, I had
almost used a stronger word, of conceding this power of interference to
the State, and then attempting to secure it from abuse by imposing
qualifications of which the States themselves are to judge. One of two
things is true; either the laws of the Union are beyond the discretion
and beyond the control of the States; or else we have no constitution of
general government, and are thrust back again to the days of the
Confederation. * * *
I must now beg to ask, sir, whence is this supposed right of the States
derived? Where do they find the power to interfere with the laws of the
Union? Sir, the opinion which the honorable gentleman maintains, is a
notion founded in a total misapprehension, in my judgment, of the origin
of this government, and of the foundation on which it stands. I hold it
to be a popular government, erected by the people; those who administer
it, responsible to the people; and itself capable of being amended and
modified, just as the people may choose it should be. It is as popular,
just as truly emanating from the people, as the State governments. It is
created for one purpose; the State governments for another. It has its
own powers; they have theirs. There is no more authority with them to
arrest the operation of a law of Congress, than with Congress to arrest
the operation of their laws. We are here to administer a constitution
emanating immediately from the people, and trusted by them to our
administration. It is not the creature of the State governments.
This government, sir, is the independent off-spring of the popular will.
It is not the creature of State legislatures; nay, more, if the whole
truth must be told, the people brought it into existence, established
it, and have hitherto supported it, for the very purpose amongst others,
of imposing certain salutary restraints on State sovereignties. The
States cannot now make war; they cannot contract alliances; they cannot
make, each for itself, separate regulations of commerce; they cannot lay
imposts; they cannot coin money. If this Constitution, sir, be the
creature of State legislatures, it must be admitted that it has obtained
a strange control over the volitions of its creators.
The people, then, sir, erected this government. They gave it a
constitution, and in that constitution they have enumerated the powers
which they bestow on it. They have made it a limited government. They
have defined its authority. They have restrained it to the exercise of
such powers as are granted; and all others, they declare, are reserved
to the States, or the people. But, sir, they have not stopped here. If
they had, they would have accomplished but half their work. No
definition can be so clear as to avoid the possibility of doubt; no
limitation so precise, as to exclude all uncertainty. Who, then, shall
construe this grant of the people? Who shall interpret their will, where
it may be supposed they have left it doubtful? With whom do they repose
this ultimate right of deciding on the powers of the government? Sir,
they have settled all this in the fullest manner. They have left it with
the government itself, in its appropriate branches. Sir, the very chief
end, the main design, for which the whole Constitution was framed and
adopted, was to establish a government that should not be obliged to act
through State agency, or depend on State opinion or State discretion.
The people had had quite enough of that kind of government under the
Confederation. Under that system, the legal action, the application of
law to individuals, belonged exclusively to the States. Congress could
only recommend; their acts were not of binding force, till the States
had adopted and sanctioned them. Are we in that condition still? Are we
yet at the mercy of State discretion and State construction? Sir, if we
are, then vain will be our attempt to maintain the Constitution under
which we sit.
But, sir, the people have wisely provided, in the Constitution itself, a
proper, suitable mode and tribunal for settling questions of
constitutional law. There are in the Constitution grants of powers to
Congress, and restrictions on these powers. There are also prohibitions
on the States. Some authority must, therefore, necessarily exist, having
the ultimate jurisdiction to fix and ascertain the interpretation of
these grants, restrictions, and prohibitions. The Constitution has
itself pointed out, ordained, and established that authority. How has it
accomplished this great and essential end? By declaring, sir, that "the
Constitution and the laws of the United States made in pursuance
thereof, shall be the supreme law of the land, any thing in the
Constitution or laws of any State to the contrary notwithstanding."
This, sir, was the first great step. By this the supremacy of the
Constitution and the laws of the United States is declared. The people
so will it. No State law is to be valid which comes in conflict with the
Constitution, or any law of the United States passed in pursuance of it.
But who shall decide this question of interference? To whom lies the
last appeal? This, sir, the Constitution itself decides also, by
declaring, "that the judicial power shall extend to all cases arising
under the Constitution and laws of the United States." These two
provisions cover the whole ground. They are, in truth, the keystone of
the arch! With these it is a government, without them a confederation.
In pursuance of these clear and express provisions, Congress
established, at its very first session, in the judicial act, a mode for
carrying them into full effect, and for bringing all questions of
constitutional power to the final decision of the Supreme Court. It
then, sir, became a government. It then had the means of
self-protection; and but for this, it would, in all probability, have
been now among things which are past. Having constituted the Government,
and declared its powers, the people have further said, that, since
somebody must decide on the extent of these powers, the Government shall
itself decide; subject, always, like other popular governments, to its
responsibility to the people. And now, sir, I repeat, how is it that a
State legislature acquires any power to interfere? Who, or what gives
them the right to say to the people: "We, who are your agents and
servants for one purpose, will undertake to decide, that your other
agents and servants, appointed by you for another purpose, have
transcended the authority you gave them!" The reply would be, I think,
not impertinent: "Who made you a judge over another's servants? To their
own masters they stand or fall."
Sir, I deny this power of State legislatures altogether. It cannot stand
the test of examination. Gentlemen may say, that, in an extreme case, a
State government may protect the people from intolerable oppression.
Sir, in such a case the people might protect themselves without the aid
of the State governments. Such a case warrants revolution. It must make,
when it comes, a law for itself. A nullifying act of a State legislature
cannot alter the case, nor make resistance any more lawful. In
maintaining these sentiments, sir, I am but asserting the rights of the
people. I state what they have declared, and insist on their right to
declare it.
They have chosen to repose this power in the General Government, and I
think it my duty to support it like other constitutional powers.
For myself, sir, I do not admit the competency of South Carolina or any
other State to prescribe my constitutional duty; or to settle, between
me and the people the validity of laws of Congress for which I have
voted. I decline her umpirage. I have not sworn to support the
Constitution according to her construction of the clauses. I have not
stipulated by my oath of office or otherwise, to come under any
responsibility, except to the people, and those whom they have appointed
to pass upon the question, whether laws, supported by my votes, conform
to the Constitution of the country. And, sir, if we look to the general
nature of the case, could any thing have been more preposterous than to
make a government for the whole Union, and yet leave its powers subject,
not to one interpretation, but to thirteen or twenty-four
interpretations? Instead of one tribunal, established by all,
responsible to all, with power to decide for all, shall constitutional
questions be left to four-and-twenty popular bodies, each at liberty to
decide for itself, and none bound to respect the decisions of others;
and each at liberty, too, to give a new constitution on every new
election of its own members? Would any thing, with such a principle in
it, or rather with such a destitution of all principle be fit to be
called a government? No, sir. It should not be denominated a
constitution. It should be called, rather, a collection of topics for
everlasting controversy; heads of debate for a disputatious people. It
would not be a government. It would not be adequate to any practical
good, or fit for any country to live under.
To avoid all possibility of being misunderstood, allow me to repeat
again in the fullest manner, that I claim no powers for the government
by forced or unfair construction. I admit that it is a government of
strictly limited powers; of enumerated, specified, and particularized
powers; and that whatsoever is not granted is withheld. But
notwithstanding all this, and however the grant of powers may be
expressed, its limit and extent may yet, in some cases, admit of doubt;
and the General Government would be good for nothing, it would be
incapable of long existing, if some mode had not been provided in which
those doubts as they should arise, might be peaceably but
authoritatively solved.
And now, Mr. President, let me run the honorable gentleman's doctrine a
little into its practical application. Let us look at his probable
_modus operandi_. If a thing can be done, an ingenious man can tell how
it is to be done, and I wish to be informed how this State interference
is to be put in practice, without violence, bloodshed, and rebellion. We
will take the existing case of the tariff law. South Carolina is said to
have made up her opinion upon it. If we do not repeal it (as we probably
shall not), she will then apply to the case the remedy of her doctrine.
She will, we must suppose, pass a law of her legislature, declaring the
several acts of Congress, usually called the tariff laws, null and void,
so far as they respect South Carolina, or the citizens thereof. So far,
all is a paper transaction, and easy enough. But the collector at
Charleston is collecting the duties imposed by these tariff laws. He,
therefore, must be stopped. The collector will seize the goods if the
tariff duties are not paid. The State authorities will undertake their
rescue, the marshal, with his posse, will come to the collector's aid,
and here the contest begins. The militia of the State will be called out
to sustain the nullifying act. They will march, sir, under a very
gallant leader; for I believe the honorable member himself commands the
militia of that part of the State. He will raise the NULLIFYING ACT on
his standard, and spread it out as his banner! It will have a preamble,
setting forth, that the tariff laws are palpable, deliberate, and
dangerous violations of the Constitution! He will proceed, with this
banner flying, to the custom-house in Charleston,
"All the while,
Sonorous metal blowing martial sounds."
Arrived at the custom-house, he will tell the collector that he must
collect no more duties under any of the tariff laws. This he will be
somewhat puzzled to say, by the way, with a grave countenance,
considering what hand South Carolina herself had in that of 1816. But,
sir, the collector would not, probably, desist at his bidding. He would
show him the law of Congress, the treasury instruction, and his own oath
of office. He would say, he should perform his duty, come what come
might.
Here would ensue a pause; for they say that a certain stillness precedes
the tempest. The trumpeter would hold his breath awhile, and before all
this military array should fall on the custom-house, collector, clerks,
and all, it is very probable some of those composing it would request of
their gallant commander-in-chief to be informed upon a little point of
law; for they have doubtless, a just respect for his opinions as a
lawyer, as well as for his bravery as a soldier. They know he has read
Blackstone and the Constitution, as well as Turenne and Vauban. They
would ask him, therefore, somewhat concerning their rights in this
matter. They would inquire whether it was not somewhat dangerous to
resist a law of the United States. What would be the nature of their
offence, they would wish to learn, if they, by military force and array,
resisted the execution in Carolina of a law of the United States, and it
should turn out, after all, that the law was constitutional? He would
answer, of course, treason. No lawyer could give any other answer. John
Fries, he would tell them, had learned that some years ago. "How, then,"
they would ask, "do you propose to defend us? We are not afraid of
bullets, but treason has a way of taking people off that we do not much
relish. How do you propose to defend us?" "Look at my floating banner,"
he would reply; "see there the nullifying law!"
"Is it your opinion, gallant commander," they would then say, "that, if
we should be indicted for treason, that same floating banner of yours
would make a good plea in bar?" "South Carolina is a sovereign State,"
he would reply. "That is true; but would the judge admit our plea?"
"These tariff laws," he would repeat, "are unconstitutional, palpably,
deliberately, dangerously." "That may all be so; but if the tribunal
should not happen to be of that opinion, shall we swing for it? We are
ready to die for our country, but it is rather an awkward business, this
dying without touching the ground! After all, that is a sort of hemp tax
worse than any part of the tariff."
Mr. President, the honorable gentleman would be in a dilemma, like that
of another great general. He would have a knot before him which he could
not untie. He must cut it with his sword. He must say to his followers,
"Defend yourselves with your bayonets"; and this is war--civil war.
Direct collision, therefore, between force and force, is the unavoidable
result of that remedy for the revision of unconstitutional laws which
the gentleman contends for. It must happen in the very first case to
which it is applied. Is not this the plain result? To resist by force
the execution of a law, generally, is treason. Can the courts of the
United States take notice of the indulgence of a State to commit
treason? The common saying, that a State cannot commit treason herself,
is nothing to the purpose. Can she authorize others to do it? If John
Fries had produced an act of Pennsylvania, annulling the law of
Congress, would it have helped his case? Talk about it as we will, these
doctrines go the length of revolution. They are incompatible with any
peaceable administration of the government. They lead directly to
disunion and civil commotion; and therefore it is, that at their
commencement, when they are first found to be maintained by respectable
men, and in a tangible form, I enter my public protest against them all.
The honorable gentleman argues that, if this Government be the sole
judge of the extent of its own powers, whether that right of judging be
in Congress or the Supreme Court, it equally subverts State sovereignty.
This the gentleman sees, or thinks he sees, although he cannot perceive
how the right of judging, in this matter, if left to the exercise of
State legislatures, has any tendency to subvert the government of the
Union. The gentleman's opinion may be, that the right ought not to have
been lodged with the General Government; he may like better such a
Constitution as we should have had under the right of State
interference; but I ask him to meet me on the plain matter of fact. I
ask him to meet me on the Constitution itself. I ask him if the power is
not found there, clearly and visibly found there?
But, sir, what is this danger, and what are the grounds of it? Let it be
remembered that the Constitution of the United States is not
unalterable. It is to continue in its present form no longer than the
people who established it shall choose to continue it. If they shall
become convinced that they have made an injudicious or inexpedient
partition and distribution of power between the State governments and
the General Government, they can alter that distribution at will.
If any thing be found in the national Constitution, either by original
provision or subsequent interpretation, which ought not to be in it, the
people know how to get rid of it. If any construction, unacceptable to
them, be established so as to become practically a part of the
Constitution, they will amend it, at their own sovereign pleasure. But
while the people choose to maintain it as it is, while they are
satisfied with it, and refuse to change it, who has given, or who can
give, to the legislatures a right to alter it, either by interference,
construction, or otherwise? Gentlemen do not seem to recollect that the
people have any power to do any thing for themselves. They imagine there
is no safety for them, any longer than they are under the close
guardianship of the State legislatures. Sir, the people have not trusted
their safety, in regard to the General Constitution, to these hands.
They have required other security, and taken other bonds. They have
chosen to trust themselves, first, to the plain words of the instrument,
and to such construction as the Government themselves, in doubtful
cases, should put on their powers, under their oaths of office, and
subject to their responsibility to them, just as the people of a State
trust to their own governments with a similar power. Secondly, they have
reposed their trust in the efficacy of frequent elections, and in their
own power to remove their own servants and agents whenever they see
cause.
Thirdly, they have reposed trust in the judicial power, which, in order
that it might be trustworthy, they have made as respectable, as
disinterested, and as independent as was practicable. Fourthly, they
have seen fit to rely, in case of necessity, or high expediency, on
their known and admitted power to alter or amend the Constitution,
peaceably and quietly, whenever experience shall point out defects or
imperfections. And, finally, the people of the United States have at no
time, in no way, directly or indirectly, authorized any State
legislature to construe or interpret their high instrument of
government; much less to interfere, by their own power, to arrest its
course and operation.
If, sir, the people in these respects had done otherwise than they have
done, their Constitution could neither have been preserved, nor would it
have been worth preserving. And if its plain provisions shall now be
disregarded, and these new doctrines interpolated in it, it will become
as feeble and helpless a being as its enemies, whether early or more
recent, could possibly desire. It will exist in every State but as a
poor dependent on State permission. It must borrow leave to be; and will
be, no longer than State pleasure, or State discretion, sees fit to
grant the indulgence, and to prolong its poor existence.
But, sir, although there are fears, there are hopes also. The people
have preserved this, their own chosen Constitution, for forty years, and
have seen their happiness, prosperity, and renown grow with its growth,
and strengthen with its strength. They are now, generally, strongly
attached to it. Overthrown by direct assault, it cannot be; evaded,
undermined, NULLIFIED, it will not be, if we, and those who shall
succeed us here, as agents and representatives of the people, shall
conscientiously and vigilantly discharge the two great branches of our
public trust, faithfully to preserve and wisely to administer it.