Chapter LVIII: Book III: Great Speeches on Great Issues (9)

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 it 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 the commencement, when they are first found to be maintained by respectable men, and in a tangible form, that 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 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 there—clearly and visibly found there.

But, sir, what is this danger, and what 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 anything 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 be established, unacceptable to them, 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 state 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 anything 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 itself, in doubtful cases, should put on its own powers, under their oaths of office, and subject to their responsibility to them; just as the people of a state trust their own state 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 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_ 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 provision shall now be disregarded, and these new doctrines interpolated in it, it will become as feeble and helpless a being as enemies, whether early or more recent, could possibly desire. It will exist in every state, but as a poor dependant 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.

Mr. President, I have thus stated the reasons of my dissent to the doctrines which have been advanced and maintained. I am conscious of having detained you, and the Senate, much too long. I was drawn into the debate with no previous deliberation such as is suited to the discussion of so grave and important a subject. But it is a subject of which my heart is full, and I have not been willing to suppress the utterance of its spontaneous sentiments.

I cannot, even now, persuade myself to relinquish it, without expressing once more, my deep conviction, that since it respects nothing less than the union of the states, it is of most vital and essential importance to the public happiness. I profess, sir, in my career hitherto, to have kept steadily in view the prosperity and honor of the whole country, and the preservation of our Federal Union. It is to that Union we owe our safety at home and our consideration and dignity abroad. It is to that Union we are chiefly indebted for whatever makes us most proud of our country. That Union we reached only by the discipline of our virtues in the severe school of adversity. It had its origin in the necessities of disordered finance, prostrate commerce, and ruined credit. Under its benign influences, these great interests immediately awoke, as from the dead, and sprang forth with newness of life. Every year of its duration has teemed with fresh proofs of its utility and its blessings; and although our territory has stretched out wider and wider, and our population spread farther and farther, they have not outrun its protection or its benefits. It has been to us all a copious fountain of national, social, personal happiness. I have not allowed myself, sir, to look beyond the Union, to see what might lie hidden in the dark recess behind. I have not coolly weighed the chances of preserving liberty, when the bonds that unite us together shall be broken asunder. I have not accustomed myself to hang over the precipice of disunion, to see whether, with my short sight, I can fathom the depth of the abyss below; nor could I regard him as a safe counsellor in the affairs of this government, whose thoughts should be mainly bent on considering, not how the Union should be best preserved, but how tolerable might be the condition of the people when it shall be broken up and destroyed. While the Union lasts, we have high, exciting, gratifying prospects spread out before us, for us and our children. Beyond that I seek not to penetrate the veil. God grant that in my day at least, that curtain may not rise. God grant that on my vision never may be opened what lies behind. When my eyes shall be turned to behold, for the last time, the sun in heaven, may I not see him shining on the broken and dishonored fragments of a once glorious Union; on states dissevered, discordant, belligerent; on a land rent with civil feuds, or drenched, it may be, in fraternal blood! Let their last feeble and lingering glance, rather, behold the gorgeous ensign of the republic, now known and honored throughout earth, still full high advanced, its arms and trophies streaming in their original lustre, not a stripe erased or polluted, nor a single star obscured—bearing for its motto no such miserable interrogatory as, _What is all this worth?_ nor those other words of delusion and folly, _Liberty first, and Union afterwards_; but every where, spread all over in characters of living light, blazing on all its ample folds as they float over the sea and over the land, and in every wind under the whole heavens, that other sentiment, dear to every true American heart—Liberty _and_ Union, now and forever, one and inseparable!

John C. Calhoun on the Rights of the States.

_Delivered July 26, 1831._

The question of the relation which the states and general government bear to each other, is not one of recent origin. From the commencement of our system, it has divided public sentiment. Even in the convention, while the Constitution was struggling into existence, there were two parties, as to what this relation should be, whose different sentiments constituted no small impediment in forming that instrument. After the general government went into operation, experience soon proved that the question had not terminated with the labors of the convention. The great struggle that preceded the political revolution of 1801, which brought Mr. Jefferson into power, turned essentially on it; and the doctrines and arguments on both sides were embodied and ably sustained; on the one, in the Virginia and Kentucky resolutions and the report to the Virginia legislature; and on the other, in the replies of the legislature of Massachusetts and some of the other states. These resolutions and this report, with the decision of the Supreme Court of Pennsylvania about the same time (particularly in the case of Cobbett, delivered by Chief Justice McKean, and concurred in by the whole bench), contain what I believe to be the true doctrine on this important subject. I refer to them in order to avoid the necessity of presenting my views, with the reasons in support of them in detail.

As my object is simply to state my opinions, I might pause with this reference to documents that so fully and ably state all the points immediately connected with this deeply important subject; but as there are many who may not have the opportunity or leisure to refer to them, and, as it is possible, however clear they may be, that different persons may place different interpretations on their meaning, I will, in order that my sentiments may be fully known, and to avoid all ambiguity, proceed to state, summarily, the doctrines which I conceive they embrace.

The great and leading principle is, that the general government emanated from the people of the several states, forming distinct political communities, and acting in their separate and sovereign capacity, and not from all of the people forming one aggregate political community; that the Constitution of the United States is in fact a compact, to which each state is a party, in the character already described; and that the several states, or parties, have a right to judge of its infractions, and in case of a deliberate, palpable, and dangerous exercise of power not delegated, they have the right, in the last resort, to use the language of the Virginia resolutions; “to interpose for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them.” This right of interposition thus solemnly asserted by the state of Virginia, be it called what it may—state right, veto, nullification, or by any other name—I conceive to be the fundamental principle of our system, resting on facts, historically as certain as our revolution itself, and deductions as simple and demonstrative as that of any political or moral truth whatever; and I firmly believe that on its recognition depends the stability and safety of our political institutions.

I am not ignorant that those opposed to the doctrine have always, now and formerly, regarded it in a very different light, as anarchical and revolutionary. Could I believe such in fact to be its tendency, to me it would be no recommendation. I yield to none, I trust, in a deep and sincere attachment to our political institutions, and the union of these states. I never breathed an opposite sentiment; but, on the contrary, I have ever considered them the great instruments of preserving our liberty, and promoting the happiness of ourselves and our posterity; and next to these, I have ever held them most dear. Nearly half my life has passed in the service of the Union, and whatever public reputation I have acquired, is indissolubly identified with it. To be too national has, indeed, been considered, by many, even of my friends, to be my greatest political fault. With these strong feelings of attachment, I have examined, with the utmost care, the bearing of the doctrine in question; and so far from anarchical or revolutionary, I solemnly believe it to be the only solid foundation of our system, and of the Union itself, and that the opposite doctrine, which denies to the states the right of protecting their reserved powers, and which would vest in the general government (it matters not through what department) the right of determining exclusively and finally the powers delegated to it, is incompatible with the sovereignty of the states, and of the Constitution itself, considered as the basis of a Federal Union. As strong as this language is, it is not stronger than that used by the illustrious Jefferson, who said, to give to the general government the final and exclusive right to judge of its powers, is to make “its discretion and not the Constitution the measure of its powers;” and that “in all cases of compact between parties having no common judge, each party has an equal right to judge for itself, as well of the operation, as of the mode and measure of redress.” Language cannot be more explicit; nor can higher authority be adduced.

That different opinions are entertained on this subject, I consider but as an additional evidence of the great diversity of the human intellect. Had not able, experienced, and patriotic individuals, for whom I have the highest respect, taken different views, I would have thought the right too clear to admit of doubt; but I am taught by this, as well as by many similar instances, to treat with deference opinions differing from my own. The error may possibly be with me; but, if so, I can only say, that after the most mature and conscientious examination, I have not been able to detect it. But with all proper deference, I must think that theirs is the error, who deny what seems to be an essential attribute of the conceded sovereignty of the states; and who attribute to the general government a right utterly incompatible with what all acknowledge to be its limited and restricted character; an error originating principally, as I must think, in not duly reflecting on the nature of our institutions, and on what constitutes the only rational object of all political constitutions.

It has been well said by one of the most sagacious men of antiquity, that the object of a constitution is to restrain the government, as that of laws is to restrain individuals. The remark is correct, nor is it less true where the government is vested in a majority, than where it is in a single or a few individuals; in a republic, than a monarchy or aristocracy. No one can have a higher respect for the maxim that the majority ought to govern than I have, taken in its proper sense, subject to the restrictions imposed by the Constitution, and confined to subjects in which every portion of the community have similar interests; but it is a great error to suppose, as many do, that the right of a majority to govern is a natural and not a conventional right; and, therefore, absolute and unlimited. By nature every individual has the right to govern himself; and governments, whether founded on majorities or minorities, must derive their right from the assent, expressed or implied, of the governed, and be subject to such limitations as they may impose. Where the interests are the same, that is, where the laws that may benefit one will benefit all, or the reverse, it is just and proper to place them under the control of the majority; but where they are dissimilar, so that the law that may benefit one portion may be ruinous to another, it would be, on the contrary, unjust and absurd to subject them to its will: and such I conceive to be the theory on which our Constitution rests.

That such dissimilarity of interests may exist it is impossible to doubt. They are to be found in every community, in a greater or less degree, however small or homogeneous, and they constitute, everywhere, the great difficulty of forming and preserving free institutions. To guard against the unequal action of the laws, when applied to dissimilar and opposing interests, is in fact what mainly renders a constitution indispensable; to overlook which in reasoning on our Constitution, would be to omit the principal element by which to determine its character. Were there no contrariety of interests, nothing would be more simple and easy than to form and preserve free institutions. The right of suffrage alone would be a sufficient guarantee. It is the conflict of opposing interests which renders it the most difficult work of man.

Where the diversity of interests exists in separate and distinct classes of the community, as is the case in England, and was formerly the case in Sparta, Rome, and most of the free states of antiquity, the rational constitutional provision is, that each should be represented in the government as a separate estate, with a distinct voice, and a negative on the acts of its co-estates, in order to check their encroachments. In England the constitution has assumed expressly this form, while in the governments of Sparta and Rome the same thing was effected, under different but not much less efficacious forms. The perfection of their organization, in this particular, was that which gave to the constitutions of these renowned states all of their celebrity, which secured their liberty for so many centuries, and raised them to so great a height of power and prosperity. Indeed, a constitutional provision giving to the great and separate interests of the community the right of self-protection, must appear to those who will duly reflect on the subject, not less essential to the preservation of liberty than the right of suffrage itself. They in fact have a common object, to effect which the one is as necessary as the other—to secure responsibility; that is, that those who make and execute the laws should be accountable to those on whom the laws in reality operate; the only solid and durable foundation of liberty. If without the right to suffrage our rulers would oppress us, so without the right of self-protection, the major would equally oppress the minor interests of the community. The absence of the former would make the governed the slaves of the rulers, and of the latter the feebler interests the victim of the stronger.

Happily for us we have no artificial and separate classes of society. We have wisely exploded all such distinctions; but we are not, on that account, exempt from all contrariety of interests, as the present distracted and dangerous condition of our country unfortunately but too clearly proves. With us they are almost exclusively geographical, resulting mainly from difference of climate, soil, situation, industry, and production, but are not, therefore, less necessary to be protected by an adequate constitutional provision than where the distinct interests exist in separate classes. The necessity is, in truth, greater, as such separate and dissimilar geographical interests are more liable to come into conflict, and more dangerous when in that state than those of any other description; so much so, that ours is the first instance on record where they have not formed in an extensive territory separate and independent communities, or subjected the whole to despotic sway. That such may not be our unhappy fate also, must be the sincere prayer of every lover of his country.

So numerous and diversified are the interests of our country, that they could not be fairly represented in a single government, organized so as to give to each great and leading interest a separate and distinct voice, as in governments to which I have referred. A plan was adopted better suited to our situation, but perfectly novel in its character. The powers of the government were divided, not as heretofore, in reference to classes, but geographically. One general government was formed for the whole, to which was delegated all of the powers supposed to be necessary to regulate the interests common to all of the states, leaving others subject to the separate control of the states, being from their local and peculiar character such that they could not be subject to the will of the majority of the whole Union, without the certain hazard of injustice and oppression. It was thus that the interests of the whole were subjected, as they ought to be, to the will of the whole, while the peculiar and local interests were left under the control of the states separately, to whose custody only they could be safely confided. This distribution of power, settled solemnly by a constitutional compact, to which all of the states are parties, constitutes the peculiar character and excellence of our political system. It is truly and emphatically American, without example or parallel.

To realize its perfection, we must view the general government and the states as a whole, each in its proper sphere, sovereign and independent; each perfectly adapted to their respective objects; the states acting separately, representing and protecting the local and peculiar interests; acting jointly, through one general government, with the weight respectively assigned to each by the Constitution, representing and protecting the interest of the whole, and thus perfecting, by an admirable but simple arrangement, the great principle of representation and responsibility, without which no government can be free or just. To preserve this sacred distribution as originally settled, by coercing each to move in its prescribed orb, is the great and difficult problem, on the solution of which the duration of our Constitution, of our Union, and, in all probability our liberty, depends. How is this to be effected?

The question is new when applied to our peculiar political organization, where the separate and conflicting interests of society are represented by distinct but connected governments; but is in reality an old question under a new form, long since perfectly solved. Whenever separate and dissimilar interests have been separately represented in any government; whenever the sovereign power has been divided in its exercise, the experience and wisdom of ages have devised but one mode by which such political organization can be preserved; the mode adopted in England, and by all governments, ancient or modern, blessed with constitutions deserving to be called free; to give to each co-estate the right to judge of its powers, with a negative or veto on the acts of the others, in order to protect against encroachments the interests it particularly represents; a principle which all of our constitutions recognize in the distribution of power among their respective departments, as essential to maintain the independence of each, but which, to all who will duly reflect on the subject, must appear far more essential, for the same object, in that great and fundamental distribution of powers between the states and general government. So essential is the principle, that to withhold the right from either, where the sovereign power is divided, is, in fact, to annul the division itself, and to consolidate in the one left in the exclusive possession of the right, all of the powers of the government; for it is not possible to distinguish practically between a government having all power, and one having the right to take what powers it pleases. Nor does it in the least vary the principle, whether the distribution of power between co-estates, as in England, or between distinctly organized but connected governments, as with us. The reason is the same in both cases, while the necessity is greater in our case, as the danger of conflict is greater where the interests of a society are divided geographically than in any other, as has already been shown.

These truths do seem to me to be incontrovertible; and I am at a loss to understand how any one, who has maturely reflected on the nature of our institutions, or who has read history or studied the principles of free government to any purpose, can call them in question. The explanation must, it appears to me, be sought in the fact, that in every free state, there are those who look more to the necessity of maintaining power, than guarding against its abuses. I do not intend reproach, but simply to state a fact apparently necessary to explain the contrariety of opinions, among the intelligent, where the abstract consideration of the subject would seem scarcely to admit of doubt. If such be the true cause, I must think the fear of weakening the government too much in this case to be in a great measure unfounded, or at least that the danger is much less from that than the opposite side. I do not deny that a power of so high a nature may be abused by a state, but when I reflect that the states unanimously called the general government into existence with all of its powers, which they freely surrendered on their part, under the conviction that their common peace, safety and prosperity required it; that they are bound together by a common origin, and the recollection of common suffering and common triumph in the great and splendid achievement of their independence; and the strongest feelings of our nature, and among them, the love of national power and distinction, are on the side of the Union; it does seem to me, that the fear which would strip the states of their sovereignty, and degrade them, in fact, to mere dependent corporations, lest they should abuse a right indispensable to the peaceable protection of those interests which they reserved under their own peculiar guardianship when they created the general government, is unnatural and unreasonable. If those who voluntarily created the system, cannot be trusted to preserve it, what power can?

So far from extreme danger, I hold that there never was a free state, in which this great conservative principle, indispensable in all, was ever so safely lodged. In others, when the co-estates, representing the dissimilar and conflicting interests of the community, came into contact, the only alternative was compromise, submission or force. Not so in ours. Should the general government and a state come into conflict, we have a higher remedy; the power which called the general government into existence, which gave it all its authority, and can enlarge, contract, or abolish its powers at its pleasure, may be invoked. The states themselves may be appealed to, three-fourths of which, in fact, form a power, whose decrees are the constitution itself, and whose voice can silence all discontent. The utmost extent then of the power is, that a state acting in its sovereign capacity, as one of the parties to the constitutional compact, may compel the government, created by that compact, to submit a question touching its infraction to the parties who created it; to avoid the supposed dangers of which, it is proposed to resort to the novel, the hazardous, and, I must add, fatal project of giving to the general government the sole and final right of interpreting the Constitution, thereby reserving the whole system, making that instrument the creature of its will, instead of a rule of action impressed on it at its creation, and annihilating in fact the authority which imposed it, and from which the government itself derives its existence.

That such would be the result, were the right in question vested in the legislative or executive branch of the government, is conceded by all. No one has been so hardy as to assert that Congress or the President ought to have the right, or to deny that, if vested finally and exclusively in either, the consequences which I have stated would not necessarily follow; but its advocates have been reconciled to the doctrine, on the supposition that there is one department of the general government, which, from its peculiar organization, affords an independent tribunal through which the government may exercise the high authority which is the subject of consideration, with perfect safety to all.

I yield, I trust, to few in my attachment to the judiciary department. I am fully sensible of its importance, and would maintain it to the fullest extent in its constitutional powers and independence; but it is impossible for me to believe that it was ever intended by the Constitution, that it should exercise the power in question, or that it is competent to do so, and, if it were, that it would be a safe depository of the power.

Its powers are judicial and not political, and are expressly confined by the Constitution “to all cases in law and equity arising under this Constitution, the laws of the United States, and the treaties made, or which shall be made, under its authority;” and which I have high authority in asserting, excludes political questions, and comprehends those only where there are parties amenable to the process of the court.[82] Nor is its incompetency less clear, than its want of constitutional authority. There may be many and the most dangerous infractions on the part of Congress, of which it is conceded by all, the court, as a judicial tribunal, cannot from its nature take cognisance. The tariff itself is a strong case in point; and the reason applies equally to all others, where Congress perverts a power from an object intended to one not intended, the most insidious and dangerous of all the infractions; and which may be extended to all of its powers, more especially to the taxing and appropriating. But supposing it competent to take cognisance of all infractions of every description, the insuperable objection still remains, that it would not be a safe tribunal to exercise the power in question.

It is an universal and fundamental political principle, that the power to protect, can safely be confided only to those interested in protecting, or their responsible agents—a maxim not less true in private than in public affairs. The danger in our system is, that the general government, which represents the interests of the whole, may encroach on the states, which represent the peculiar and local interests, or that the latter may encroach on the former.

In examining this point, we ought not to forget that the government, through all of its departments, judicial as well as others, is administered by delegated and responsible agents; and that the power which really controls ultimately all the movements, is not in the agents, but those who elect or appoint them. To understand then its real character, and what would be the action of the system in any supposable case, we must raise our view from the mere agents, to this high controlling power which finally impels every movement of the machine. By doing so, we shall find all under the control of the will of a majority, compounded of the majority of the states, taken as corporate bodies, and the majority of the people of the states estimated in federal numbers. These united constitute the real and final power, which impels and directs the movements of the general government. The majority of the states elect the majority of the Senate; of the people of the states, that of the House of Representatives; the two united, the President; and the President and a majority of the Senate appoint the judges, a majority of whom and a majority of the Senate and the House with the President, really exercise all of the powers of the government with the exception of the cases where the Constitution requires a greater number than a majority. The judges are, in fact, as truly the judicial representatives of this united majority, as the majority of Congress itself, or the President, is its legislative or executive representative; and to confide the power to the judiciary to determine finally and conclusively what powers are delegated and what reserved, would be in reality to confide it to the majority, whose agents they are, and by whom they can be controlled in various ways; and, of course, to subject (against the fundamental principle of our system, and all sound political reasoning) the reserved powers of the states, with all of the local and peculiar interests they were intended to protect, to the will of the very majority against which the protection was intended. Nor will the tenure by which the judges hold their office, however valuable the provision in many other respects, materially vary the case. Its highest possible effect would be to retard, and not finally to resist, the will of a dominant majority.

But it is useless to multiply arguments. Were it possible that reason could settle a question where the passions and interests of men are concerned, this point would have been long since settled for ever, by the state of Virginia. The report of her legislature, to which I have already referred, has really, in my opinion, placed it beyond controversy. Speaking in reference to this subject, it says, “It has been objected” (to the right of a state to interpose for the protection of her reserved rights), “that the judicial authority is to be regarded as the sole expositor of the Constitution; on this subject it might be observed first that there may be instances of usurped powers which the forms of the Constitution could never draw within the control of the judicial department; secondly, that if the decision of the judiciary be raised above the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final with the decision of that department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases, in which all of the forms of the Constitution may prove ineffectual against infraction dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the judicial department may also exercise or sanction dangerous powers beyond the grant of the Constitution, and consequently that the ultimate right of the parties to the Constitution to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another—by the judiciary, as well as by the executive or legislative.”

Against these conclusive arguments, as they seem to me, it is objected, that if one of the parties has the right to judge of infractions of the Constitution, so has the other, and that consequently in cases of contested powers between a state and the general government, each would have a right to maintain its opinion, as is the case when sovereign powers differ in the construction of treaties or compacts, and that of course it would come to be a mere question of force. The error is in the assumption that the general government is a party to the constitutional compact. The states, as has been shown, formed the compact, acting as sovereign and independent communities. The general government is but its creature; and though in reality a government with all the rights and authority which belong to any other government, within the orb of its powers, it is, nevertheless, a government emanating from a compact between sovereigns, and partaking, in its nature and object, of the character of a joint commission, appointed to superintend and administer the interests in which all are jointly concerned, but having, beyond its proper sphere, no more power than if it did not exist. To deny this would be to deny the most incontestable facts, and the clearest conclusions; while to acknowledge its truth, is to destroy utterly the objection that the appeal would be to force, in the case supposed. For if each party has a right to judge, then under our system of government, the final cognisance of a question of contested power would be in the states, and not in the general government. It would be the duty of the latter, as in all similar cases of a contest between one or more of the principals and a joint commission or agency, to refer the contest to the principals themselves. Such are the plain dictates of reason and analogy both. On no sound principle can the agents have a right to final cognisance, as against the principals, much less to use force against them, to maintain their construction of their powers. Such a right would be monstrous; and has never, heretofore, been claimed in similar cases.

That the doctrine is applicable to the case of a contested power between the states and the general government, we have the authority not only of reason and analogy, but of the distinguished statesman already referred to. Mr. Jefferson, at a late period of his life, after long experience and mature reflection, says, “With respect to our state and federal governments, I do not think their relations are correctly understood by foreigners. They suppose the former subordinate to the latter. This is not the case. They are co-ordinate departments of one simple and integral whole. But you may ask if the two departments should claim each the same subject of power, where is the umpire to decide between them? In cases of little urgency or importance, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the states must be called to ascribe the doubtful power to that department which they may think best.”—It is thus that our Constitution, by authorizing amendments, and by prescribing the authority and mode of making them, has by a simple contrivance, with its characteristic wisdom, provided a power which, in the last resort, supersedes effectually the necessity and even the pretext for force; a power to which none can fairly object; with which the interests of all are safe; which can definitely close all controversies in the only effectual mode, by freeing the compact of every defect and uncertainty, by an amendment of the instrument itself. It is impossible for human wisdom, in a system like ours, to devise another mode which shall be safe and effectual, and at the same time consistent with what are the relations and acknowledged powers of the two great departments of our government. It gives a beauty and security peculiar to our system, which, if duly appreciated, will transmit its blessings to the remotest generations; but, if not, our splendid anticipations of the future will prove but an empty dream. Stripped of all its covering, and the naked question is, whether ours is a federal or a consolidated government: a constitutional or absolute one; a government resting ultimately on the solid basis of the sovereignty of the states, or on the unrestrained will of a majority; a form of government, as in all other unlimited ones, in which injustice and violence, and force, must finally prevail. Let it never be forgotten, that where the majority rules, the minority is the subject; and that if we should absurdly attribute to the former the exclusive right of construing the Constitution, there would be in fact between the sovereign and subject, under such a government, no constitution; or at least nothing deserving the name, or serving the legitimate object of so sacred an instrument.

How the states are to exercise this high power of interposition which constitutes so essential a portion of their reserved rights that it cannot be delegated without an entire surrender of their sovereignty, and converting our system from a federal into a consolidated government, is a question that the states only are competent to determine. The arguments which prove that they possess the power, equally prove that they are, in the language of Jefferson, “the rightful judges of the mode and measure of redress.” But the spirit of forbearance, as well as the nature of the right itself, forbids a recourse to it, except in cases of dangerous infractions of the Constitution; and then only in the last resort, when all reasonable hope of relief from the ordinary action of the government has failed; when, if the right to interpose did not exist, the alternative would be submission and oppression on the one side, or resistance by force on the other. That our system should afford, in such extreme cases, an intermediate point between these dire alternatives, by which the government may be brought to a pause, and thereby an interval obtained to compromise differences, or, if impracticable, be compelled to submit the question to a constitutional adjustment, through an appeal to the states themselves, is an evidence of its high wisdom; an element not, as is supposed by some, of weakness, but of strength; not of anarchy or revolution, but of peace and safety. Its general recognition would of itself, in a great measure, if not altogether, supersede the necessity of its exercise, by impressing on the movements of the government that moderation and justice so essential to harmony and peace, in a country of such vast extent and diversity of interests as ours; and would, if controversy should come, turn the resentment of the aggrieved from the system to those who had abused its powers (a point all important), and cause them to seek redress, not in revolution or overthrow, but in reformation. It is, in fact, properly understood, a substitute where the alternative would be force, tending to prevent, and if that fails, to correct peaceably the aberrations to which all political systems are liable, and which, if permitted to accumulate, without correction, must finally end in a general catastrophe.

Speech of Henry Clay

_In Defence of the American System[83] in which is given the Previous
History of Tariff Contests in the Senate of the United States, February
2d, 3d and 6th, 1832._

[Mr. CLAY, having retired from Congress soon after the establishment
of the American System, by the passage of the Tariff of 1824, did not
return to it till 1831–2, when the opponents of this system had
acquired the ascendency, and were bent on its destruction. An act
reducing the duties on many of the protected articles, was devised and
passed. The bill being under consideration in the Senate, Mr. CLAY
addressed that body as follows:]

In one sentiment, Mr. President, expressed by the honorable gentleman from South Carolina, (General Hayne,) though perhaps not in the sense intended by him, I entirely concur. I agree with him, that the decision on the system of policy embraced in this debate, involves the future destiny of this growing country. One way I verily believe, it would lead to deep and general distress, general bankruptcy and national ruin, without benefit to any part of the Union: the other, the existing prosperity will be preserved and augmented, and the nation will continue rapidly to advance in wealth, power, and greatness, without prejudice to any section of the confederacy.

Thus viewing the question, I stand here as the humble but zealous advocate, not of the interests of one State, or seven States only, but of the whole Union. And never before have I felt more intensely, the overpowering weight of that share of responsibility which belongs to me in these deliberations. Never before have I had more occasion than I now have to lament my want of those intellectual powers, the possession of which might enable me to unfold to this Senate, and to illustrate to this people great truths, intimately connected with the lasting welfare of my country. I should, indeed, sink overwhelmed and subdued beneath the appalling magnitude of the task which lies before me, if I did not feel myself sustained and fortified by a thorough consciousness of the justness of the cause which I have espoused, and by a persuasion I hope not presumptuous, that it has the approbation of that Providence who has so often smiled upon these United States.

Eight years ago it was my painful duty to present to the other House of Congress, an unexaggerated picture of the general distress pervading the whole land. We must all yet remember some of its frightful features. We all know that the people were then oppressed and borne down by an enormous load of debt; that the value of property was at the lowest point of depression; that ruinous sales and sacrifices were everywhere made of real estate; that stop laws, and relief laws, and paper money were adopted to save the people from impending destruction; that a deficit in the public revenue existed, which compelled government to seize upon, and divert from its legitimate object the appropriations to the sinking fund, to redeem the national debt; and that our commerce and navigation were threatened with a complete paralysis. In short, sir, if I were to select any term of seven years since the adoption of the present constitution which exhibited a scene of the most widespread dismay and desolation, it would be exactly that term of seven years which immediately preceded the establishment of the tariff of 1824.

I have now to perform the more pleasing task of exhibiting an imperfect sketch of the existing state of the unparalleled prosperity of the country. On a general survey, we behold cultivation extended, the arts flourishing, the face of the country improved, our people fully and profitably employed, and the public countenance exhibiting tranquillity, contentment and happiness. And if we descend into particulars, we have the agreeable contemplation of a people out of debt, land rising slowly in value, but in a secure and salutary degree; a ready though not extravagant market for all the surplus productions of our industry; innumerable flocks and herds browsing and gamboling on ten thousand hills and plains, covered with rich and verdant grasses; our cities expanded, and whole villages springing up, as it were, by enchantment; our exports and imports increased and increasing; our tonnage, foreign and coastwise, swelling and fully occupied; the rivers of our interior animated by the perpetual thunder and lightning of countless steam-boats; the currency sound and abundant; the public debt of two wars nearly redeemed; and, to crown all, the public treasury overflowing, embarrassing Congress, not to find subjects of taxation, but to select the objects which shall be liberated from the impost. If the term of seven years were to be selected, of the greatest prosperity which this people have enjoyed since the establishment of their present constitution, it would be exactly that period of seven years which immediately followed the passage of the tariff of 1824.

This transformation of the condition of the country from gloom and distress to brightness and prosperity, has been mainly the work of American legislation, fostering American industry, instead of allowing it to be controlled by foreign legislation, cherishing foreign industry. The foes of the American System, in 1824, with great boldness and confidence, predicted, 1st. The ruin of the public revenue, and the _creation of a necessity_ to resort to direct taxation. The gentleman from South Carolina, (General Hayne,) I believe, thought that the tariff of 1824 would operate a reduction of revenue to the large amount of eight millions of dollars. 2d. The destruction of our navigation. 3d. The desolation of commercial cities. And 4th. The augmentation of the price of objects of consumption, and further decline in that of the articles of our exports. Every prediction which they made has failed—utterly failed. Instead of the ruin of the public revenue, with which they then sought to deter us from the adoption of the American System, we are now threatened with its subversion, by the vast amount of the public revenue produced by that system. Every branch of our navigation has increased.

* * * * *

Whilst we thus behold the entire failure of all that was foretold against the system, it is a subject of just felicitation to its friends, that all their anticipations of its benefits have been fulfilled, or are in progress of fulfillment. The honorable gentleman from South Carolina has made an allusion to a speech made by me, in 1824, in the other House, in support of the tariff, and to which, otherwise, I should not have particularly referred. But I would ask any one, who can now command the courage to peruse that long production, what principle there laid down is not true? what prediction then made has been falsified by practical experience?

It is now proposed to abolish the system, to which we owe so much of the public prosperity, and it is urged that the arrival of the period of the redemption of the public debt has been confidently looked to as presenting a suitable occasion to rid the country of evils with which the system is alleged to be fraught. Not an inattentive observer of passing events, I have been aware that, among those who were most early pressing the payment of the public debt, and upon that ground were opposing appropriations to other great interests, there were some who cared less about the debt than the accomplishment of other objects. But the people of the United States have not coupled the payment of _their_ public debt with the destruction of the protection of _their_ industry, against foreign laws and foreign industry. They have been accustomed to regard the extinction of the public debt as relief from a burthen, and not as the infliction of a curse. If it is to be attended or followed by the subversion of the American system, and an exposure of our establishments and our productions to the unguarded consequences of the selfish policy of foreign powers, the payment of the public debt will be the bitterest of curses. Its fruit will be like the fruit

“Of that forbidden tree, whose mortal taste
Brought death into the world, and all our woe,
With loss of Eden.”

If the system of protection be founded on principles erroneous in theory, pernicious in practice—above all if it be unconstitutional, as is alleged, it ought to be forthwith abolished, and not a vestige of it suffered to remain. But, before we sanction this sweeping denunciation, let us look a little at this system, its magnitude, its ramifications, its duration, and the high authorities which have sustained it. We shall see that its foes will have accomplished comparatively nothing, after having achieved their present aim of breaking down our iron-foundries, our woolen, cotton, and hemp manufactories, and our sugar plantations. The destruction of these would, undoubtedly, lead to the sacrifice of immense capital, the ruin of many thousands of our fellow-citizens, and incalculable loss to the whole community. But their prostration would not disfigure, nor produce greater effect upon the _whole_ system of protection, in all its branches, than the destruction of the beautiful domes upon the capitol would occasion to the magnificent edifice which they surmount. Why, sir, there is scarcely an interest, scarcely a vocation in society, which is not embraced by the beneficence of this system.

It comprehends our coasting tonnage and trade, from which all foreign tonnage is absolutely excluded.

It includes all our foreign tonnage, with the inconsiderable exception made by treaties of reciprocity with a few foreign powers.

It embraces our fisheries, and all our hardy and enterprising fishermen.

It extends to almost every mechanic art: * * *

It extends to all lower Louisiana, the Delta of which might as well be submerged again in the Gulf of Mexico, from which it has been a gradual conquest, as now to be deprived of the protecting duty upon its great staple.

It affects the cotton planter himself, and the tobacco planter, both of whom enjoy protection.