Of all these departments, the Judiciary is the weakest, because, it cannot act until invited to do so, its sphere of action is very limited, nor can it do any positive act, without the permission of the Legislature, and the co-operation of the Executive.
But lastly, can the human mind conceive a more audacious proposition, than that which suggests, that in a controversy between the parties to a Covenant, by which covenant an agent is created, where the matter in dispute between the principals, regards the authority exerted by the agent, the decision of this controversy must be referred to the agent himself? The very exertion of the authority by the agent, is a decision that he believes he may rightfully do so; and after this, it is gravely proposed, to leave the matter to the final arbitrament of one who has already decided it, and who has decided it, too, with the approbation of the very persons who proposed such a reference. In transactions between man and man, none could hesitate what name to bestow upon such a proposition: but where the Sovereignty of the States and the freedom of their people is concerned, a gross fraud is metamorphosed into a political theory only. Nor will the case be changed materially if the nominated arbiter has never yet decided the question, provided that arbiter be the Supreme Court; this arbiter is not even given by lot. It is appointed by the supposed wrong doer, paid by him, accountable to him, subject at any moment to be punished and cashiered by him, and this too, for giving the very decision its conscience might prompt. Thus, matters which would constitute valid and legal objections, to witnesses, to Jurors, and to the Judges themselves, in the most trifling controversy between man and man, are to be overlooked and disregarded, in the support of a new theory, which seeks to constitute the Federal government the sole Judge of its own power.
I have great respect for the Judiciary of every country, but no lawyer or historian can tell, in what age or in what country, the Judiciary have ever been able, even where it was willing, to protect the rights of the people against the usurpations of Government. England has long been blessed with a Judiciary, composed of men, whose intelligence, whose integrity, and whose firmness, would not suffer in comparison with that of any others who have ever been or are now on earth. But when or who of these Judges have ever been able to save the privileges of the people from the prerogatives of the crown, unless the Judiciary was sustained by another branch of the government? And how many examples are there, of acts of Parliament made for the special purpose of saving the people from the Judiciary? For the Judiciary of the United States, I entertain at least as much respect as I do for any other Judiciary. I will not say more; and I cannot say less. With the individual Judges, I have nothing to do. They shall all be, if any one thinks so, what some of them certainly are, “like Mansfield wise, and as old Foster just.” But all must know that the robes of office do not cover angels, but mere men, as prone to err, as any other men of equal intelligence, of equal purity, and of equal constancy. We all know, too, that some of the supreme Judges of the United States, have not thought it unbecoming their high places, to accept Foreign Missions, to present themselves as candidates for other offices, and to enter into newspaper disquisitions upon party topics. I do not mean to blame them for such things, but merely to shew from such facts, that the rights of sovereign States, when assailed by the government of the United States, could not be safely confided to a forum so constituted, even if it was possible that it could take cognizance of the subject. Nor can he be considered as a discreet friend to the Judiciary I should think, who desired to embark it in this fearful strife.
I have answered this first objection, founded upon the suggestion, that the Supreme Court of the United States is the common arbiter appointed to decide all questions that may arise between a State and its co-States, touching the violation of their mutual covenant. My answer to the remaining objections I must postpone to another number.
XI.
Nullification vs. Slavery
Joint Resolution of the Legislature of Wisconsin
March 19, 1859
Chapter 3 of this book described the matter of Sherman Booth, the Wisconsin abolitionist whose agitation in behalf of the alleged fugitive slave Joshua Glover found him several times brought up on charges by federal authorities. What follows are the resolutions passed by the state legislature, some six decades after the publication of the Virginia and Kentucky Resolutions, regarding this affair. The last two paragraphs are drawn very substantially from the Kentucky Resolutions of 1798 and 1799.
Whereas, the Supreme Court of the United States has assumed appellate jurisdiction in the matter of the petition of Sherman M. Booth for a writ of habeas corpus, presented and prosecuted to final judgment in the supreme court of this state, and has, without process, or any of the forms recognized by law, assumed the power to reverse that judgment, in a matter involving the personal liberty of the citizen, asserted by and adjusted to him by the regular course of judicial proceedings upon the great writ of liberty secured to the people of each state by the constitution of the United States:
And whereas, such assumption of power and authority by the supreme court of the United States, to become the final arbiter of the liberty of the citizen, and to override and nullify the judgments of the state courts’ declaration thereof, is in direct conflict with that provision of the constitution of the United States which secures to the people the benefits of the writ of habeas corpus:
Therefore,
Resolved, the Senate concurring, That we regard the action of the supreme court of the United States, in assuming jurisdiction in the case before mentioned, as an arbitrary act of power, unauthorized by the constitution, and virtually superseding the benefit of the writ of habeas corpus, and prostrating the rights and liberties of the people at the foot of unlimited power.
Resolved, That this assumption of jurisdiction by the federal judiciary, in the said case, and without process, is an act of undelegated power, and therefore without authority, void, and of no force.
Resolved, That the government formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
Resolved, that the principle and construction contended for by the party which now rules in the councils of the nation, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism, since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers; that the several States which formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infractions; and that a positive defiance of those sovereignties, of all unauthorized acts done or attempted to be done under color of that instrument, is the rightful remedy.
Acknowledgments
ONE NICE THING ABOUT TRAVELING AND SPEAKING SO MUCH is that I have managed to make friends with experts on just about everything. For discussing some of the issues in this book with me, I am grateful to Michael Boldin, Donald Livingston, Jon Roland, Phillip Magness, Clyde Wilson, Brion McClanahan, Kevin Gutzman, and Stephan Kinsella. For helping me out with various clerical tasks, I wish to thank Eric William Smith, Jennifer Lewis, Brian Ramsdell, and Allison Harnack. Thanks also to Laurence Vance for allowing me the use of a portion of the foreword I wrote to Vance Publications’ edition of Abel Upshur’s Brief Enquiry into the True Nature and Character of Our Federal Government, and to Taki’s Magazine for the use of a portion of my article “Is There Sovereignty Beyond the State?” Stephen Carson graciously performed critical copyediting services. My editor, Anneke Green, provided invaluable assistance; her suggestions regarding the organization of the argument made this a much better book. And thanks to Regnery Publishing for its usual efficiency, for bringing this book out so quickly, and for not needing to be badgered into appreciating the significance o
f the topic. As always, I am grateful to the Ludwig von Mises Institute for its support of my work.
Thanks to my wife, as usual, for her unflagging support. I wasn’t as frantic as usual this time, I’m happy to say, even though this was a very time-sensitive project. Once again my mother helped out with babysitting services that yielded me several crucial and productive Saturdays. And thanks to our four daughters, to whom this book is dedicated. In all my projects, the one non-negotiable block of time in which I do not work extends from the end of my working day until the moment they go to bed. They always put a smile on my face, and every day I want to return the favor.
APPENDIX
The Constitution of the United States
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
ARTICLE I
Section 1
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Section 2
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.
When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Section 3
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.
Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Section 4
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
Section 5
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Section 6
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
Section 7
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on t
he Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
Section 8
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
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