Friday, May 1, 2020

Cato V, Part XXVII: The Same Causes, contd.

            Unfortunately for John C. Calhoun and the disgruntled inhabitants of South Carolina, Andrew Jackson was more a devotee of Jefferson as President than as the radical, insurgent ideologue who had authored the Kentucky Resolutions. He was perhaps less of a nationalist than the last three of his predecessors, having strong negative feelings about the 2nd Bank of the United States, the national debt, and concept of internal improvements. But Jackson also remained a military man at heart, and like Jefferson himself he showed a willingness to ignore certain of his own professed convictions if the outcome was something that he particularly desired. Bearing these traits in mind, the Tariff of 1828 was not something Jackson felt that he needed to oppose. As the War of 1812 had shown, the United States suffered from a lack of domestic manufacturing which could very easily prove its downfall in the event of a sustained armed conflict. A protective tariff which promoted manufacturing was an obvious preventative measure, and one which the soldier in Jackson accordingly supported. The other aspect of the tariff legislation – the federal revenue it would generate – also appealed to the newly-minted Commander-in-Chief, though arguably for less practical reasons. Unlike many prominent voices in the contemporary Democratic-Republican party who had come to see the utility of the financial system originally devised by Alexander Hamilton – former Treasury Secretary Albert Gallatin, and former Presidents James Madison and James Monroe, to name only a few – Jackson was steadfastly of the opinion that a national debt could only ever be a source of public corruption. A government which was perpetually in hock to bankers and financiers, foreign governments, and speculators, he asserted, would never be at liberty to act in the best interests of its constituents. Eliminating the national debt, therefore, was absolutely essential if the American republic were ever to fulfill the promise of its founding. Since the Tariff of 1828 would serve to generate the revenues which would help to make this outcome possible, Jackson was perfectly willing to let it remain in force.
   
            The so-called “Nullifiers” in South Carolina – so named for their belief in the right of the states to effectively “nullify” federal laws which they found to be invalid – were understandably displeased at Jackson’s opposition to their cause as his position became clearer over the next several years. In April 1830, at a function honoring the birthday of Thomas Jefferson hosted by what was now being called the Democratic Party – as compared to the opposition National Republican Party – dueling toasts from supporters and opponof the Tariff and South Carolina’s response to the same led Jackson to declare his support for, “Our Federal Union: It must be preserved.” Calhoun, also in attendance and evidently still holding out hope for some manner of compromise, responded by raising his glass to, “The Union. Next to our liberty, the most dear.” While this exchange, in itself, might not have seemed like much cause for concern, Jackson escalated matters somewhat precipitously a few days later during an exchange at the White House with a visitor from South Carolina. Asked if there were any words which the President would like his guest to convey to any of his friends or acquaintances living in the Palmetto State, Jackson purportedly replied that there most certainly were. “Please give my compliments to my friends in your State [,]” he declared,  

And say to them, that if a single drop of blood shall be shed there in opposition to the laws of the United States, I will hang the first man I can lay my hand on engaged in such treasonable conduct, upon the first tree I can reach.

Notwithstanding his Vice-President’s own best intentions, it seemed, a confrontation between President Jackson and the Nullifiers was evidently in the offing.

            The last straw – the thing that tipped the Nullifiers into formal insurrection – was ironically intended to be an act of conciliation and compromise. Over the course of 1831 and into 1832, various forces within the National Republican Party – led by former Secretary of State Henry Clay (1777-1852) – and the Jacksoninan wing of the Democratic Party sought after and proposed a number of solutions to the ongoing crisis which each of them hoped would settle the matter amicably. Clay called for a reduction in tariff revenues by ten million dollars to be offset by an anticipated budget surplus, Jackson proposed reducing the existing tariffs – set at 38% on imported manufactures and 45% on imported raw materials – to a flat 28%, and former President John Quincy Adams – now a member of the House of Representatives – advocated for a compromise bill that would lower some tariffs, maintain others, and reduce overall revenues by five million dollars. The end result, after a series of negotiations, was the Tariff of 1832. Authored principally by the aforementioned Congressman Adams in his role as Chairman of the Ways and Means Committee, this bill proposed to lower federal tariffs across the board to 35%. The Nullifiers in South Carolina remained strongly opposed – and even attempted to forge an alliance with Democrats in certain Western states in exchange for Southern support for free land grants – but the resulting House vote made clear the increasing tenuousness of their position. New England voted overwhelmingly in favor, seeing the compromise as an eminently reasonable one. The Middle Atlantic and the West followed suit. Only the South came out against the measure, and even then, only by four votes (36-32). With a final tally of 132 to 60 – as compared to the Tariff of 1828’s margin of 105 to 94 – the House approved the Tariff of 1832 in the summer of that year. The Senate added their endorsement shortly thereafter and Jackson added his signature on July 14th.

            Despite his evident hope that matters with South Carolina would thereafter be settled – alongside those of his supporters in Congress and the National Republicans under Clay and Quincy Adams – Jackson’s behavior over the course of the next several months belied a sustained suspicion on his part that some hazard yet remained. Acting on rumors that the Nullifiers were working to convert officers of the Army and Navy stationed in Charleston to their cause, he ordered a rotation of personnel based on avowed loyalty to the federal government. Troops were also prepared, and a naval squadron readied, in case federal forces needed to be rushed to the Palmetto State’s capital. And by October of 1832, writing to Secretary of War Lewis Cass (1782-1866), Jackson’s level of concern had risen to the point that he appeared to expect a resort to arms. “The attempt will be made to surprise the Forts and garrisons by the militia,” he cautioned accordingly, “And must be guarded against with vestal vigilance and any attempt by force repelled with prompt and exemplary punishment.” In seeming answer to these actions – and just in time to coincide with Jackson’s landslide reelection – the South Carolina legislature released an ordinance formally nullifying both the Tariff of 1828 and the Tariff of 1832 on the 24th of November. The President, one can well imagine, did not respond with equanimity.

The actual wording of the nullification ordinance, it should come as no surprise, was both blunt in its tone and inflammatory in its effect. Congress, it asserted, in laying tariffs upon certain imported commodities for the supposed purpose of protecting and promoting domestic manufactures, had done so, “At the expense and to the injury and oppression of other classes and individuals [.]” In so doing, the federal legislature,

Exceeded its just powers under the constitution, which confers on it no authority to afford such protection [and] which provides for equality in imposing the burdens of taxation upon the several States and portions of the confederacy [.]

Bearing this purported fact in mind, it accordingly stood to reason that the tariffs in question, approved by Congress in the years 1828 and 1832 were,

Unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State, its officers or citizens; and all promises, contracts, and obligations, made or entered into, or to be made or entered into, with purpose to secure the duties imposed by said acts, and all judicial proceedings which shall be hereafter had in affirmance thereof, are and shall be held utterly null and void.

Practically speaking, these few lines of text represented a massive assumption of authority on the part of the government of South Carolina. Not only was the Palmetto State claiming the right to declare such federal law invalid as it determined to have violated the terms of the Constitution, but to likewise nullify all contracts and judicial proceedings which appeared either to proceed from or to affirm the same. Against such claimed prerogatives, by what means could the federal government ever hope to assert itself? What law could Congress pass that South Carolina couldn’t nullify? What ruling could the federal courts hand down that the Palmetto State couldn’t claim the right to invalidate?

The Nullifiers doubtless felt that their actions were entirely justified; nay, that the principle of state sovereignty demanded such a defense. But the implication of what they were attempting was potentially disastrous. The balance of state and federal responsibilities that had been established upon the ratification of the Constitution in 1789 – a balance which had thereafter sustained the American republic through two disputed elections and a years-long war with one of the Great Powers of the day – was likely to be thrown into chaos. As more states followed the path set out by South Carolina and began nullifying such legislation as their governments found disagreeable, federal authority would practically cease to exist. Each state would claim sole authority to interpret the Constitution for itself and its citizens, leading inevitably to conflicts between states over the “true” meaning of significant articles and clauses. States that chose to accept federal authority in most cases might maintain a sense of national cohesion, but those who continually nullified federal law and federal jurisprudence were bound to drift further and further from their more obedient counterparts until such time as they might claim total independence. Over a long enough period, if this assumption of power remained unchallenged, it was conceivable that the United States of America might even cease to exist.

The Nullifiers, it bears noting, likely didn’t have this particular aim in mind. Calhoun, for his part, had spent most of his political career until at least the 1820s as an ardent nationalist. In Congress he had worked to strengthen and centralize the American military establishment after its middling performance during the War of 1812. In 1816 he supported the chartering of the 2nd Bank of the United States. And in 1817 he became James Monroe’s Secretary of War. The impact of the Panic of 1819 and the Tariff of 1828 on the fortunes his home state clearly changed his focus as a public servant away from national concerns and towards those of South Carolina, but not to the point of desiring the dissolution of the American republic.  Nevertheless, the position which he had adopted as to the very nature of the union of American states – and which his fellow Nullifiers adopted in turn – undeniably tended in that exact direction. Jackson appeared to perceive this more clearly than his opponents and expressed himself accordingly to his constituents and fellow countrymen.

Issued on December 11th, 1832, Jackson’s proclamation denouncing South Carolina’s ordinance of nullification made the stakes of the present crisis as clear as anyone was likely to manage. “The power to annul a law of the United States, assumed by one State,” he declared, was,

Incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed.

The President’s rationale, as he went on to explain it, was as much moral as it was rigorously legal or practical. On one hand, in light of South Carolina’s evident claim that the unconstitutionality of the relevant tariffs derived in part from their supposed purpose rather than the mechanism employed, he countered that it would be virtually impossible to ascertain the intentions of every legislator responsible for crafting and approving every piece of federal legislation. “Who is to make the scrutiny? How often may bad purposes be falsely imputed? In how many cases are they concealed by false professions? In how many is no declaration of motive made?” There could be no sensible answers to these questions, Jackson avowed; no satisfaction to be derived from inquiring into the purposes harbored by the people’s representatives while engaged in their lawful duties.

On the other hand, evidently seeking to arouse the pride that his countrymen had come to invest in their collective sense of nationhood, he asked them what sense it would make for the states to be able to nullify laws that “operated unequally” when no law ever conceived by man had ever, or would ever, meet that criteria. Why would the Framers have constructed a plan of government so completely and fatally flawed as to permit any and every law passed thereby to be rendered null and void at the pleasure of the states? The Constitution was surely worth more than that. Indeed, Jackson declared, it was worth more than that; American had made it so, by their actions and their faith. “We have trusted to it,” he rhapsodized,

As to the sheet-anchor of our safety in the stormy times of conflict with a foreign or domestic foe. We have looked on it with sacred awe as the paladium of our liberties, and with all the solemnities of religion, have pledged to each other our lives and fortunes here, and our hopes of happiness hereafter, in its defence and support […] Did we pledge ourselves to the support of an airy nothing, a bubble that must be blown away by the first breath of disaffection? […] Did the name of Washington sanction, did the States deliberately ratify such an anomaly in the history of fundamental legislation? No. We were not mistaken.

Jackson’s tactic – and indeed it was a tactic, whether he believed what he was saying or not – was an exceptionally canny one. Whereas Calhoun and his allies were asking their countrymen to essentially forget all that had transpired between the ratification of the Constitution in 1789 and the present moment in 1832 which had served to strengthen the authority of the federal government – and further to imagine that the states had always possessed the means of invalidating federal legislation – the President grounded his position on no such flight of fancy. On the contrary, all that he asked of his fellow Americans was that they remember what had actually happened in the preceding forty years.

The Constitution had been drafted and ratified at the end of the 1780s precisely because the inability of Congress to make binding demands of the states had proven to be an untenable and unmanageable arrangement. If the United States was to survive beyond its infancy – if the unity of purpose which had sustained the American people through the horrors and trials of war was to endure – then the national authority would need to be raised in some areas above that of the states. The Framers knew this to be true, the majority of the delegates to the various ratifying conventions knew this to be true, and at no point did anyone assert that the states in fact retained the right to upend the resulting balance of power at the pleasure of their governments. As made explicit in the original text of the Constitution, and pursuant to the terms of the supplementary Bill of Rights, the Government of the United States possessed sole authority in a number of foreign and domestic policy areas within which the states were forbidden to intrude and whose validity the states had no means to question. Not only had this been the case in the early 1790s upon the election of the first President and the seating of the first Congress, but it had continued to be so through all the years since. And in all that time, the American people had largely come to embrace what the Framers had devised in their name. They celebrated the Constitution, honored its authors, lionized the first holders of the great offices of state, and pledged themselves, as Jackson observed, to defend the legacy that their forebears had left them. By attempting to deny this state of affairs – by effectively endeavoring to claim that all was not in fact as it seemed – the Nullifiers were thus in essence pushing against the substance of the history of the nation in which they lived. It was not an enviable position, to be sure, and one which left them at a distinct disadvantage.
  
Their opponent, after all, was the President of the United States. Even if the individual in question hadn’t been a belligerent egotist who famously detested having his authority called into question, the office itself had come to be associated with a great deal of power. As Jefferson had shown during the tortured life of the Embargo Act (1807), the President’s role as Commander-in-Chief of the armed forces of the United States placed a great deal of coercive power at his disposal in the event that a piece of federal legislation was being actively defied. Provided the requisite Congressional approval – and sometimes even in the absence of the same – the Chief Executive could conceivably order the Army, the Navy, and the Revenue-Marine to secure federal property and protect federal personnel, detain and search suspected violators, and generally seek to intimidate all those who might otherwise consider breaking the law. Washington provided a similar example over a decade prior. Confronted with what appeared to be a nascent insurrection in Western Pennsylvania – the result of local refusals to adhere to a federal tax on whiskey – the former Commander-in-Chief of the Continental Army asserted his authority to call the state militias into national service for the purpose of enforcing the offending excise and arresting those who had led the campaign of resistance. Backed by these precedents, and with the aid of an increasingly cooperative Congress, Jackson was accordingly well-equipped to confront the Nullifiers and not the slightest bit squeamish of doing so. If Washington and Jefferson had behaved in such a manner, what reason had Old Hickory to fear recrimination for doing the same?

Congress seemed to agree with Jackson’s accordant sense of resolution. Certain of its members still held out hope for a negotiated settlement, of course, and pursued the same through the end of winter and the beginning of spring in 1833. But the President’s request for an authorization of force was likewise given a full and fair hearing. The text of the resulting “Force Bill” – formally titled “An Act further to provide for the collection of duties on imports” – was submitted by Jackson to Congress on January 16th, 1833. Broadly speaking, it proposed to accomplish three essential objectives by way of expanding executive authority. First, in order better to, “Execute the revenue laws, and collect the duties on imports in the ordinary way,” authority was to be granted to the President to transfer the custom-house of a given district to, “Any secure place within some port or harbour of such district, either upon land or on board any vessel [,]” and at the same time, “To employ such part of the land or naval forces, or militia of the United States, as may be deemed necessary for the purpose of preventing the removal of such vessel or cargo” as were due to be inspected and upon which taxes were due to be paid. Second, in the event that the laws or judicial proceedings of the United States were interfered with or obstructed, “By the employment of military force, or by any other unlawful means, too great to be overcome by the ordinary course of judicial proceeding, or by the powers vested in the marshal by existing laws,” the President was thereby authorized to issue a proclamation, “Requiring all such military and other force forthwith to disperse,” and, should it furthermore become necessary, “To employ such means to suppress the same, and to cause the said laws or process to be duly executed [.]” And third, in the event that a state refused to allow persons charged with federal offenses to be jailed therein, it was to be deemed lawful, “For any marshal, under the direction of the judge of the United States for the proper district, to use other convenient places, within the limits of said state [.]”

In practice, it bears noting, hardly any of the powers allocated by the terms of the Force Bill to the office of President fell much outside of the authority already known to be possessed by the same. Between the established constitutional role of the Chief Executive to, “Take Care that the Laws be faithfully executed” and the cited examples by which certain of Jackson’s predecessors had sought to accomplish the same, there couldn’t have been much doubt, circa 1833, that he indeed possessed broad discretionary authority over the lawful application of coercive force. The fact that he nevertheless sought out the approval of Congress – as did Washington and Jefferson – was therefore likely a strategic decision rather than one which the law explicitly required. Under the circumstances, with Congress itself divided over the various issues at hand – protectionism, unequal taxation, the very nature of federalism, etc. – it doubtless seemed a more prudent approach on the part of the President to request an authorization of force – thus allowing Congress to have its say – than to assert the attendant powers unilaterally and risk widening the scope of the present crisis. Jackson’s waning belief in the necessity of protectionism and his simultaneous amenability to a peaceful settlement did much to help this strategy along. So long as the President made clear his willingness to support the passage of a new compromise tariff – which he did – then Congress was evidently willing to approve his desired assertion of executive authority.

In the end, thanks in large part to the efforts of Henry Clay and John C. Calhoun – the latter now representing South Carolina in the Senate – the Nullification Crisis did not devolve into an armed internecine conflict. Seeking, in large part, to save the very concept of protectionist tariffs from being forever stained with the iniquity of having rent the union asunder, Clay endeavored to reach a compromise with the Nullifiers that would preserve the principle of using trade regulations to promote domestic manufacturing while lessening the practical impact in economically disadvantaged states. The resulting proposal, when he finally presented it in the Senate in February of 1833, thus embodied a very gradualist approach to alleviating the controversy at hand. Using an earlier plan that had been introduced in the House but failed to gain traction as a starting point, Clay’s bill recommended the reduction of all duties mandated by the Tariff of 1832 above the rate of 20% by one-tenth every two years. At the end of nine years – in 1842, that is to say – this would leave all of relevant duties at a flat rate of 20% across the board, where they would remain unless altered by Congress thereafter. On the whole, it must be said, this did not represent a particularly generous offer. Though the impact of higher prices for imported goods would be steadily lessened in states like South Carolina – to the point of falling below even the rates mandated by the Tariff of 1816 – the principle objections which the Nullifiers had raised did not look as though they were going to be addressed. Protectionism, which they had decried as unconstitutional, remained the principle objective of the adjusted tariff proposal, and the lowered import duties were still going to affect South Carolina differently then Massachusetts, New York, or Pennsylvania. All the same, Calhoun was inclined to accept the terms. The reason, no doubt, lay with Jackson and his Force Bill.

The fact that the fates of the Tariff of 1833 and the Force Bill became so closely intertwined in practice is arguably a testament to the strategic acumen of the Hero of New Orleans. Jackson was certainly willing to compromise. His disenchantment with protectionism had mounted as the Nullification Crisis came to a head in the early 1830s, and he was not so foolish as to imagine that his reputation would emerge unscathed should conflict between the federal government and the state of South Carolina have proven unavoidable. That being said, Old Hickory had never been – indeed would never be – the kind of person who much cared to wait for approval when he believed it was his duty to act. He did ask Congress for an authorization of force, it was true. And he did make it clear that he would support a viable compromise bill in the event that it met with the approval of all those concerned. But what if Congress had rejected the Force Bill? Based on Jackson’s reputation, his prior actions, and the subsequent events of presidency, does it seem likely that he would backed down? He had not done so during the Seminole War (1816-1818) when his generous interpretation of the orders he’d been given very nearly lead to his dismissal from federal service. And what was the result? The annexation of Spanish Florida by the United States of America. And what had the actions of men like Washington and Jefferson made clear about the authority of the President in the context of law enforcement? Washington had called up and commanded the state militias. Jefferson had commanded and directed the arms forces of the American republic. What reason would Jackson have had in 1833 to doubt his own right to do the very same? And what reason did anyone else have to doubt that Jackson wouldn’t inevitably proceed as he saw fit? None at all, on both counts.

In may fairly be said, in consequence, that Congress approved of Jackson’s Force Bill in no small part because Jackson approved of their compromise tariff. And it may likewise be reasonably argued that Calhoun in turn approved of the compromise tariff because on some level he feared what the Force Bill would unleash. Jackson, in essence, had handed to his countrymen a reasonably simple set of alternatives. Either they could find some means of compromise that would settle the tariff issue once and for all, or they could make their peace with the fact that armed force was necessary. For the members of Congress, the correct response was also the most obvious. Compromise is what they wanted, and so much the better if Jackson was willing to support it. And in the event that their efforts failed, it was certainly preferable to have validated the President’s subsequent actions than to have opposed them to no avail. John C. Calhoun, along with his fellow Nullifiers, appeared to come to much the same conclusion in response to Jackson’s tacit ultimatum, though perhaps for different reasons. Notwithstanding the principles which the Nullifiers seemed to want to shine a light on as their case against the federal tariff regime hardened into an outright defiance of federal law, the options laid before them at the beginning of 1833 were regrettably rather stark. Either they could take whatever compromise Congress managed to devise or they could brace themselves for the bloodshed that was sure to follow the deployment of federal troops. No one particularly desired the latter outcome, be they Democrat, Nullifier, or National Republican. And Congress would certainly have objected if the President chose to exercise his authority over the armed forces in the absence of their express authorization. In the end, however, the Nullifiers knew what the Democrats knew, what the National Republicans knew, indeed what everyone knew. Jackson was going to do what Jackson was going to do. Such had ever been the case, and such would ever be the case.
          
This particular aspect of Jackson’s character is a large part of what makes the Nullification Crisis such an interesting example of the evolution of executive authority across the early history of the American republic. Whereas Washington and Jefferson both used their authority as Commander-in-Chief to summon troops and enforce federal law, Jackson only had to indicate his inclination to do so in order to achieve the same final result. To some extent, as aforementioned, this was simply a matter of personality. Jackson had well proven over the course of his career that he was not the sort of person who threatened things that he was not ultimately willing to do. But the actions of these previous Presidents must also have played their parts. George Washington, during the Whiskey Rebellion (1794), and Thomas Jefferson, during the life of the Embargo Act (1807-1809), had both demonstrated that the office of Chief Executive possessed a significant reserve of coercive authority which it could legally deploy in the name of executing the laws of the land. It was true that Congress had in both cases provided its authorization, but what was it that was actually being accomplished? Were the House and the Senate actually giving the President new powers which he did not already possess? Was that something Congress could even do under the Constitution? Or had the assembled representatives merely acknowledged something that already existed?

Jackson, being doubtless personally inclined that way, certainly acted as though he would have answered that last question in the affirmative. Having witnessed, in the course of his own lifetime, more than one of his predecessors assume active command during a moment of national crisis, he had likely internalized the resulting image of the President as a figure possessed of significant resources and substantial discretion. The members of Congress, as seated at the beginning of 1833, doubtless disagreed with this characterization of the office of Chief Executive as a matter of principle, but their actions likewise spoke to the influence that previous Presidents had wrought. If they had truly believed Jackson lacked the authority to deploy the armed forces as mandated by the terms of his Force Bill, they might have demonstrated as much quite easily by rejecting it out of hand and insisting on a seeking a compromise without the Sword of Damocles hanging over their heads. They did not, of course. Instead, likely convinced on some level that Jackson already had all the precedent he needed to deploy as much force as he believed the situation required, the assembled Senators and Congressmen signaled their approval. And why not? Why fight a battle that they were more than likely to lose? If Jackson was willing to give them one last chance to arrive at a workable compromise, why anger him needlessly by denying his authority as President? There would have been no sense in it. The President may not have possessed unlimited authority, but as the preceding decades had clearly shown that he had more than enough to put down a rebellion or enforce an unpopular law. Whether the law as written strictly agreed with this arrangement or not, the American people had come to know it for a fact.          

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