Nullification: How to Resist Federal Tyranny in the 21st Century

by Thomas E. Woods

  The remarks offered under the preceding head, apply with equal force and propriety to this. You and the President both say, that it is arrogance and presumption in a State to insist on retaining her place and influence in the Union, while she refuses to submit to part of its laws. Admitting, again, that this is perfectly true, but re-asserting that it cannot apply to the refusal of a State to submit to what is NOT law, I have to ask you how it is possible for a State to “maintain her authorities, rights, and liberties,” except by the check which she may apply as a State, and as a member of the United States, to the usurpations of the Federal Government, or by an appeal to arms? I pray you, sir, to enlighten my understanding upon this subject. If YOU cannot show me some other mode of proceeding, I take it for granted that no one else can. At all events, until it shall be done by some one or other, I shall be compelled to continue in my present heresy. If it was the meaning and object of the resolutions of 1798, that the States had the right, and were in duty bound, to resist the usurpations of the Federal Government, by some means, which, at the same time that it arrested the evil, should preserve the Union unbroken, I must be permitted to think that Nullification, if it does not attain these objects completely, comes much nearer to it than any other proceeding which has yet been proposed. I know, sir, that you, and hundreds of others, have said that the resolutions of 1798 have been misunderstood. Perhaps so. It is true their language has appeared to me, and to others like me, to be extremely plain—and it is our own construction of it alone which has formed our principles. Yet it is possible that it may hide some meaning deeper than we have been able to penetrate. I pray you to tell us what it is. Do not content yourself with the THEORY only, but but [sic] let us know the precise extent of our rights, and the precise mode in which they may be constitutionally asserted, according to the resolutions of 1798.

  It has not escaped my attention that, according to those resolutions, the State interposition which they contemplate is not authorised, except in cases of “deliberate, palpable, and dangerous exercise of powers not granted.” It will be obvious, however, to intellects less clear than your own, that this does not affect, in any degree, the principle upon which State resistance is justified, nor even the mode in which it may be exerted. It merely points out the proper occasion for the application of the principle. And it will be sufficient here to remark, that according to your own theory, which in this respect agrees with the resolutions, each State is the exclusive judge for itself, whether the usurpation is deliberate, palpable, and dangerous, or not. It follows, of course, that no objection to Nullification can be derived from this view of the subject.

  I have now, sir, to present to you a dilemma, connected with this part of our inquiries, and to ask you in what manner you propose to escape its horns?

  South Carolina says that an unconstitutional law is void, and so say the Virginia Resolutions—South Carolina says that each State has a right to decide for itself whether a law is constitutional or not, and so say the Virginia Resolutions—South Carolina, in the exercise of this right, has declared that the Tariff Laws ARE unconstitutional, and so say the Virginia Resolutions of 1828 and 1829 (I have forgotten the date) and so, Mr. Ritchie, SAY YOU. How, then, can you countenance the President, in subjecting the citizens of South Carolina to the sword, for not submitting to what you yourself believe to be a sheer usurpation on the part of the Federal Government? Do, sir, in pity to our oppressed spirits, answer this question. You will not answer it, sir—because you CANNOT answer it without convicting yourself of inconsistency. THIS I WILL PROVE—for I do not mean to allow you any refuge from this dilemma. South Carolina is either right in her proceedings, (principles and all,) or else she is wrong. If she is RIGHT, then there can be no pretence whatever for making war upon her: if she is WRONG, how does that fact appear? It is admitted that the other States, co-parties with her to the Constitution, have not said so. Congress alone, and the President, or rather the Federal Government, has said it. Do you, sir, acknowledge any such right in the Federal Government? Is it not perfectly clear, that if such right exists, the Federal Government is an appellate tribunal, WITH POWER TO DECIDE, IN THE LAST RESORT, UPON THE CONSTITUTIONALITY OF ITS OWN ACTS? Of what avail is the right of a State to pronounce that an unconstitutional act of Congress is really so, if Congress may overrule that decision? Is not this, sir, the very essence of that consolidation against which the Virginia Resolutions, Madison’s Report, and your own valuable labours, have so long contended? It is impossible, then, for you to justify Congress and the President, except by asserting, either that Congress may overrule the decision of South Carolina, upon a question touching their own powers, and, by the same rule, may overrule the decision of every other State, and thus become the sole judges of the extent of their own powers; or by asserting that they may constitutionally enforce an unconstitutional law. Can you, sir, escape this difficulty, without abandoning every principle for which you have professed to contend for thirty years? I am exceedingly anxious to know in what manner you will do it. For myself, I can discover but one possible loop-hole of retreat, and even that I will endeavour to close upon you.—I reserve this, however, for a succeeding letter.

  NO. IV.

  In my last letter, sir, I submitted for your solution, a proposition which appears to me to place you in considerable difficulty. A lion in the toils might, in perfect consistency with his character, decline all means of escape, through fear of committing his dignity upon an unsuccessful effort. In order that I may reconcile you to this course, (believing that you are already determined on pursuing it,) I proceed to show you that you could not escape, if you would.

  You will perhaps say, that although a State has a right to pronounce on the constitutionality of an act of Congress; yet it is, nevertheless, bound to submit to an act so pronounced to be unconstitutional, until the other States shall have sanctioned its decision. This, if it were true, might perhaps afford some ground of apology for the President and Congress. It is this which I have already alluded to, as presenting the only possible chance of escape from the horns of my dilemma. Indeed, sir, it may be useful for you to know, that a great many of the most vociferous denouncers of Nullification go with it, in perfect fellowship, until it reaches this point. I will endeavour now to show that there is no sort of reason for separating here; and if I should succeed in this effort, you may rely upon it, that a vast number who are now in your ranks will desert to mine. I affirm, therefore, that the Resolutions of 1798, so far from countenancing the idea that a State which has pronounced an act of Congress to be unconstitutional; is bound to obey that law, until the other States shall sanction its decision, do distinctly assert the precise reverse. This, I doubt not, I shall prove.

  I presume it will readily be admitted, that Madison’s Report, which was made expressly to sustain those Resolutions, is a fair interpreter of their meaning. That Report, after stating the proposition, that “where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the judges in the last resort, whether the bargain made has been pursued or violated,” proceeds thus: “The States, then, being the parties to the Constitutional Compact, and in their sovereign capacity, it follows, of necessity, that there can be no tribunal above their authority, to decide, in the last resort, whether the Compact made by them be violated; and, consequently, that, as the parties to it, they must decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition. From this view of the Resolution, it would seem inconceivable that it can incur any just disapprobation from those who, laying aside all momentary impressions, and recollecting the genuine source and object of the Federal Constitution, shall candidly and accurately interpret the meaning of the General Assembly. If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it, in interposing, even so far as to avert the progress of the evil, and thereby to preserve the Constitution itself, as well as to provid
e for the safety of the parties to it, there would be an end of all relief from usurped power, and a direct subversion of the rights specified or recognized under all the State Constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared.”

  This language appears to me to be plain enough for any common understanding. It even goes a bow-shot beyond the Nullification of South Carolina. That State admits that the other States, acting as such, may overrule her decision; but the Resolutions, as explained by the Report, contemplate such decision as “in the last resort,” and therefore, final and conclusive. This must be the correct interpretation, unless the Report, by the term “States” and “parties,” intended to limit itself to the plural number, and of course, not to include a single State, acting by itself. This is, at least, a mere quibble, altogether unworthy of the dignity of the subject; but as there appears to be a determination to get rid of our old principles in some way or other, their friends must not neglect their defence, even at those points which would seem to be impregnably intrenched. If, then, the Resolutions do not contemplate the interposition of each State for itself, they must contemplate such interposition either by all the States, or by a majority of the States, or by a plural number, less than a majority of the States. If the first was meant, it was a most useless and ridiculous parade of argument, to prove what is altogether self-evident. Certainly those who made the Government have a right not only to check and control it, but even to unmake it, whenever all of them concur in that wish. If, therefore, this be the meaning of the Resolutions, they only affirm what no one would ever think of denying, and what is equally true of other Governments as of ours. Do the Resolutions, then, refer to a majority of the States? The same remark applies here. The right of a majority to rule, is a fundamental principle in all Representative Governments, supposing always, that they exercise that right consistently with the rights of the minority. It follows, a fortiori, that they have a right to interpose to prevent the minority from usurping upon their rights. If, then, this be the meaning of the Resolutions, they employ a very useless solemnity in affirming a mere truism. Besides, it is idle to suppose, that the interposition either of all the States, or of a majority of them, is intended to be asserted as a right, when the object is to correct the usurpations of that very majority itself. Certainly those who do the wrong, not only have a right to redress it, but are in duty bound to do so. Do the Resolutions, then, contemplate a plural number less than a majority? If so, a single State may act for itself, upon the same principle; for there is no rule, either in ethics or politics, which measure the rights of a minority, by the mere number who may happen to compose it. Indeed, that the action by a single State, for itself, was contemplated, is manifest enough, from other considerations. In the first place, the language imports it, and will be so understood by every reader, who is not prone to look for refinement and sublimity in every thing. Moreover, it is the particular object of the written Constitutions to define and limit the powers of the Government; to guard against usurpations; to protect the weak against the strong; to guard the rights of the minority against the encroachments of the majority. The States, when they formed the Compact, brought to that work, their entire sovereignty, and all their rights. If they did not then surrender that sovereignty and those rights altogether, they must have designed to reserve to themselves, the task of protecting them. A case may very well arise, in which an unconstitutional law may affect the rights of a single State only; and it would be a mocking of the very name of State Rights, to say that in such case, she may not protect herself. In what other course can her “safety” be “provided” for? If twenty-three States should unite in cutting up every right which appertains to the twenty-fourth, has that State no redress except what a “majority” of her oppressors may choose to grant? If this be the meaning of the Resolutions, so far from affirming and protecting State Rights, they affirm that no single State has any rights at all. Besides, the Resolutions speak only of the reserved rights of the States; among which reserved rights, is that which authorises State interposition, to arrest the usurpations of the Federal Government. Now, how are these rights “reserved”? Does one State “reserve” its own rights to another State, or any number of other States? This seems to me, to be a grant, and not a reservation of a right. Each State, then, reserves its own rights to itself, and the Resolutions affirm, that the right to refuse obedience to an unconstitutional law, is among those reserved rights. Again: If the State may not act upon its own decision, until the majority have sanctioned it, the right so to decide, is, as to all practical results, in that majority, and not in the State. The State has only the right to express its opinion; which opinion, although involving her “safety,” and her very existence, goes for nothing, until approved by others. This is, indeed, a meagre State Right, Mr. Ritchie. Besides, sir, is there not some contradiction in the positions that a State may declare a law to be unconstitutional, and yet that it is bound to submit to that law, for some given time? What difference is there, in principle, between an obligation to submit to an unconstitutional law for one day, and an obligation to submit to it for one year, or for ever? I confess that I can see none at all. Finally, sir—for the subject was really not worthy of even these few practical and popular views of it—suppose that the other States should refuse to say whether the particular State which undertakes to pronounce a law unconstitutional, is right or wrong? There are no means of compelling them to decide, and of course, a majority of the States, upon your supposition, (if it be yours,) have only to stand mute, in order to deprive all the other States, and constitutionally too, of every right which appertains to them. Nay, even if the other States should be disposed to act upon the subject in good faith, the right which the individual State interposes to protect, may be such as to be lost for ever, unless it be promptly asserted. Our slave population will at once suggest to you such a case. The very delay, therefore, of this previous appeal, may be fatal to the very existence of the right. I can scarcely think that it was the intention of the Resolutions of 1798, to produce any such result as this.

  And now, sir, let me bring you back to my dilemma. The Resolutions of 1798, approved by you, acknowledge the right of South Carolina, to pronounce the Tariff Laws unconstitutional; and do not require that she shall forbear to act on that decision, until it shall be affirmed by a majority of the other States. South Carolina has pronounced those laws unconstitutional, and you have over and over again declared, that she is right in that respect. How then can you countenance the President and Congress, in subjecting her people to the sword, for not obeying those laws? I would, if a regard to decorum did not forbid it, defy you to the answer. You ought to give it, and plainly and satisfactorily too, or else you ought to change your course. You are encouraging the President in making war upon South Carolina. It is war, sir, however you may disguise it—civil war—with all its unnumbered train of sufferings, tears and sorrows. A husband and a father who contemplates this result, must have a nature more callous than I take yours to be, if he can admit into his calculations, either the “feelings” of a political favourite, the success of party objects, or the poor pride of opinion. You can, if you choose, arrest the wide spreading desolation with which our whole country is threatened. I beseech you to reflect that it is at least possible, that you are permitting innocent blood to be shed, when it is in your power to prevent it. Shall it not, hereafter, be required at your hands?

  …The President has profited by your suggestions, and has founded his proposed measures of violence and carnage, upon reasons with which you have furnished him. The history of that man’s past life, affords full and terrible proof, that he never wants [i.e., lacks] excuses, good or bad, for any outrage which he may propose to perpetrate upon the Laws and Constitution of his country. Posterity will do him justice, although this age seems determined to be blind to his real character. I cannot close these letters without an attempt to show, that there is no reason whatever, which can justif
y or extenuate the sanguinary purpose which he now entertains. I have not yet, however, quite done with the subject of Nullification. It will be continued in my next letter.

  NO. V.

  …It is perfectly true, as the President contends, that if a State may declare one law to be unconstitutional, it may declare any and every other law to be so; and by the same rule, each State may, in the exercise of the same right, select a particular law or laws as unconstitutional, and thus utterly destroy the uniform operation of the system. But while this is certainly possible, it is in no degree probable, and cannot possibly occur, except in such a state of public feeling in regard to the Union, as would at all events, dissolve it by other means. If the States no longer wish to remain in Union, they will of course separate. But if they are really desirous to preserve the Union, their own interest affords a sufficient pledge that they will not endanger it, by throwing themselves upon their reserved rights, except in extreme cases, which require it. If one State or two States, should be mad enough to do so, it cannot be imagined that such a number of them will do so as to afford any ground for the President’s fears, or any application for the argument which he derives from them. The Government of the United States, is the mere agent of the States, for specified purposes, and it is inconceivable that the States who appointed that agent for their own use and advantage, would without cause, so embarrass its action, as to render its agency of no value. In practice therefore, this argument of the President is not entitled to any consideration. And even if it were otherwise, is it more consistent with principle, that the agent should control the constituent, or that the constituent should control the agent? These views of the subject, however, are worth nothing. We cannot judge for the practical operation of the Government, by any such extreme case. Human sagacity cannot foresee, nor human prudence provide for all possible contingencies; nor can human language define and limit every possible modification of social rights. Although Governments are primarily founded in distrust, yet there is, of necessity, some degree of confidence in all of them. The wisest statesmen can do no more than repose that confidence in the safest hands, while at the same time, he surrounds it with all practicable guards against abuse. If the States may abuse their reserved rights in the manner contemplated by the President, the Federal Government, on the other hand, may abuse its delegated rights. There is danger from both sides, and as we are compelled to confide in the one or the other, we have only to inquire, which is most worthy of our confidence. In the first place, as I have already remarked, the States cannot have any interest to abuse their reserved rights. Besides, the right for which they contend, is not a right of action at all, but merely a right to check unauthorised action, in the other party. The abuse of this right, can be found in nothing but in the interposition of the State to check its own agent, in doing what it expressly authorised its own agent to do, for its own advantage. The right itself is indispensable to self-preservation, while the abuse of it is not to be contemplated as sufficiently probable, to found any argument against the right itself. On the other hand, the Federal government has a direct interest to enlarge its own powers, by encroaching on the rights of the States. The constituent can rarely, if ever, have an interest in contracting the powers of his agent, but prima facie, the agent always has an interest in making them greater. And when we reflect on the strong love which most men feel, for patronage and power, the influence of this interest upon the mere men who wield the Federal Government, (and who as to this argument, must be identified with it) affords much cause for distrust and fear. It is therefore much more probable that the Federal Government will abuse its power, than that the States will abuse theirs. And if we suppose a case of actual abuse on either hand, it will not be difficult to decide which is the greater evil. If a State should abuse its rights of interposition by arresting the operation of a constitutional law, the worst that could come of it, would be to suspend the operation of the law for a time, as to that State, while it would have all its effects within the other States. This would certainly be unjust, but in most cases, would be attended with very little practical evil. In some cases, it is true, the consequences might be serious, such, for instance, as might arise in a time of war; but it is precisely in such cases that the State would have the least motive for coming into collision with her sister States. Besides, according to the doctrine for which I am contending, this evil would be temporary only; it must cease in some way or other, as soon as the other States act upon the subject. I acknowledge however, that it is at best an evil, but it is an evil inseparable from our system, and one which cannot be avoided except by submitting to a greater evil. It is perfectly evident that this right must exist in the States unless it be incompatible with the rights of the Federal Government. Supposing this incompatibility to exist, there must be a right in that Government to control the States in this respect, and to enforce a law which the States may have pronounced to be unconstitutional. Let us now suppose an abuse of this right. It would consist in an attempt by the Federal Government, to coerce obedience to an unconstitutional law.—This, sir, it seems to me, is despotism in its very essence. If the Federal Government may enforce one unconstitutional law, it may enforce every unconstitutional law, and thus all the rights of the States and the people may fall one by one, before the omnipotence of that Government. This consequence is too manifest to escape even the most superficial observation. The worst possible result of nullification, even in the opinion of its bitterest opponents, is to dissolve the Union—and this result does not legitimately flow from it; while the alternative which they propose, establishes an absolute despotism, which not only dissolves the Union, but establishes the worst possible form of Government upon its ruins. Thus it appears that nullification is much less apt to be abused, than the alternative remedy, and when abused, its consequences are infinitely less to be deprecated. Of the two evils, I choose the least. I prefer the remedy, which although in its extreme abuse, it may lead to disunion, may be peaceful in its results, to one which necessarily dissolves the Union, and whose direct object and tendency are to violence and blood, and absolute power.