As comfortable as both
Jefferson and Calhoun appeared to be with speculation – while claiming, of
course, that they were in fact adhering strictly to a set text – they also
seemed to be of the same opinion as to the right of the individual states to
judge of infractions upon their respective liberties. Jefferson wrote very much
to this effect in his Kentucky Resolutions (1798), declaring that,
This government, created by this
compact, was not made the exclusive or final judge of the extent of the powers
delegated to itself, since that would have made its discretion, and not the
Constitution, the measure of its powers; but that, as in all other cases of
compact among powers 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.
As was evidently
far from uncommon, Calhoun echoed this sentiment in his South Carolina
Exposition and Protest (1828). “It would seem impossible to deny to the States
the right of deciding on the infractions of their powers,” he affirmed,
And the proper remedy to be applied
for their correction. The right of judging, in such cases, is an essential
attribute of sovereignty, of which the States cannot be divested without losing
their sovereignty itself, and being reduced to a subordinate corporate
condition.
Once again, the ways in which these two men
chose to express themselves do not precisely align. Jefferson, for his part,
made a point of characterizing the United States of America as a “compact,”
over which there existed no common judge and within which each individual state
must exercise its own discretion. By comparison, Calhoun seemed less interested
in the structure of the American republic than in the nature of the states themselves.
The states must decide, “On the infractions of their powers,” he asserted, not
because there existed no common judge of superior authority, but because they
each remained sovereign entities. They had been sovereign before they acceded
to the union of states and nothing in the concomitant process had served to
reduce them to a, “Subordinate corporate condition.” But while this points to a
different source of independent judgement than that which Jefferson had
described, the sentiment at its core is fundamentally alike to that expressed
in the cited text of the Kentucky Resolutions. Both Jefferson and Calhoun
seemed to conceive of the American republic as primarily a union of states in
which said states were the primary actors. The federal government, such as it
was, served merely as a framework which the various states slotted themselves
into for the purpose of achieving certain shared objectives. If any given state
had cause to disallow federal authority in an area which it deemed to be beyond
the remit of the same, that was for the state in question to decide. And if any
given state believed it necessary for the preservation of its liberty to
extricate itself from the federal union altogether, that was likewise a matter
for its citizens to decide. The states, in this view, had created the federal
government, and could accordingly take it, leave it, or dissolve it as they
pleased.
In actual practice, of course, the
so-called “compact theory” of American federalism tends to ignore both how the
United States came into being under the Constitution and how it functions from
day to day. For one thing, the federal government really isn’t an empty shell
which requires the states to provide its essential motive force. Rather, it is
a separate, parallel government which cooperates with, and recognizes the
existence of, the various states while maintaining a fundamentally independent
existence. For the purpose of political representation, it is true, the states
“send” representatives to the House and the Senate, and the members of the
Electoral College are chosen on a state-by-state basis. But in each of these
cases, the state government themselves are kept from operating directly upon
any aspect of the national authority. The states are responsible for delineating
electoral districts and for conducting federal legislative elections, but it is
the inhabitants of those states who do the voting. And the states are
responsible for overseeing presidential elections and determining how their
electors are ultimately awarded, but it is the inhabitants of those states who
decide which electors are going to be allowed to cast their votes.
Prior to the passage of the 17th
Amendment (ratified April 8th, 1913), of course, the state
legislatures did directly elect Senators, and during this period it was not uncommon
for state governments to directly “instruct” their Senators how and when to
vote on matters of particular interest. Even so, this arrangement still
represented a slight attenuation of state power within the federal sphere. Senators
were chosen by the governments of their respective states, but they were not
members thereof. If a state election occurred at some point during the six-year
tenure of a given Senator, the result would be a Senator of one party
representing a state government controlled by another party. The influence of
said government upon the Senator in question – and by extension, the influence
of said state within the upper house of Congress –would accordingly have been
lessened. By way of comparison, the upper house of the modern-day German
national legislature, the Bundesrat, is composed of actual members of the
various state governments. As state elections change the makeup of the state
legislatures, so the makeup of the Bundesrat changes in turn. This arrangement
– in place, as of this writing, for over seventy years – represents an
authentic form of federalism whereby the constituent entities within a union of
sovereign states exercise direct influence over the federal authority and
federal policy. This is not the cause, nor has it ever been, in the United
States of America.
In fairness, the American republic under
the Constitution was never really designed to be a federation in the truest
sense of the word. Consider, to that end, the manner by which it originally came
to be. The state legislatures did select the delegates who would go on to
represent them for the duration of the Philadelphia Convention, and the
ratifying conventions that eventually approved the proposed text were organized
on a state-by-state basis. But the Constitution was never formally approved by
the governments of the states themselves. This, as it happened, was very much
by design. Knowing full well that any national government which the states
could claim to have created would never be able to command them in the way that
the Framers knew would be necessary if their experiment was to succeed, they
made a point of essentially cutting the states out of the ratification process
and appealing directly to the American people. Granted, the states were
responsible for organizing the various ratifying conventions, but the people
living in those states chose the delegates, and the delegates chose to approve
or reject the proposed constitution. The benefit of this arrangement was that by
essentially creating a constituency specifically for the purpose of ratifying
the Constitution which would then dissolve itself, the resulting federal
government would be free to made demands of the states without having to face
threats by the same to suspend it, alter it, or ignore it on the basis that
they had previously authorized its creation. Tactically speaking, this was an
exceptionally shrewd maneuver on the part of the Framers, and one which
essentially guaranteed the continued existence of the federal government until
– unlikeliest of unlikely events – a consensus as wide-ranging as that which
had approved it could once more be summoned. But what it also means is that the
United States of America, as it exists under the terms of the Constitution, is
not truly a compact of the states. On the contrary, the federal government,
like the state governments, is an independent creation on the American people.
Even if the explanations cited above were
not valid, of course – even if the Constitution had been approved directly by
the states, and even if the states exerted influence directly upon the federal
government – the theory of strict constructionism which Jefferson and Calhoun
both seemed to favor offers at least one additional counterargument to the cited
claim put forward in the Kentucky Resolutions (1798) and the South Carolina
Exposition and Protest (1828). Turning to the plain text of the Constitution
itself – which, again, the theory of strict constructionism demands – only two
clauses can be found that speak directly to the intended relationship between
the federal government and the state governments. The first, located in Article
VI, reads,
This Constitution, and the Laws of
the United States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States, shall
be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any state to the Contrary
notwithstanding.
The second, being
much favored by opponents of excessive centralization like Jefferson and
Calhoun, is the whole text of the 10th Amendment. It reads, very
simply, that, “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.” The combined significance of these two
passages would seem to be relatively straightforward, notwithstanding what has
been said of either of them by the critics or supporters of this or that theory
of federalism.
There are things which the federal
government can do – powers which it can exercise – which the individual states
cannot. These things – these powers – are the reason that the federal
government exists, and within the sphere of their operation the federal
government is absolutely supreme. That being said, these powers are not
exhaustive in their scope. There are a great many things which the federal
government does not need to do, or indeed should not be able to do, the
carrying out of which are accordingly reserved to the states. In the event that
the government of a given state believes that the federal government has
violated its sovereign liberties, the question which needs to be answered is,
in consequence, not whether the federal government has power over the state in
question so much as it is whether the authority being exercised belongs to the
state governments or to the federal government. The resulting procedure may not
necessarily be to the liking of the state lodging the relevant complaint –
culminating, as it inevitably must, in an appeal to the federal judiciary – but this is plainly what the Constitution requires.
In many ways, this
kind of declaration was very much in keeping with the era in which it was
inscribed. A number of the Framers were already semi-legendary at the time the
attended the Philadelphia Convention in 1787. Benjamin Franklin (1706-1790) had
been one of the most famous men in the Anglo-American world since at least the
1760s, and George Washington (1732-1799) was already being heralded as the
“Father of his Nation” and a latter-day Cincinnatus. But while colleagues like
Thomas Jefferson and James Madison were familiar enough with these men on a
personal level to call their motives into question when they felt it appropriate
to do so, the number of American statesmen willing – or indeed even able – to
cast doubt upon the efforts of the Framers was bound to decline as the years
advanced. While there were still certain members of that sainted cohort alive in
1828 upon the publication of Calhoun’s Exposition and Protest – Madison probably chief among them – the
majority had since passed on by then, leaving behind reputations which would
shine only brighter as the flawed individuals behind them were gradually
forgotten.
It may be, upon consideration, that people
like Jefferson and Calhoun had a valid point. It may be that placing the power
of adjudication in the hands of the federal government grants it a tremendous
advantage over the various state governments in the event of a disagreement
between one and the other. But so too would permitting the states to decide for
themselves whether the federal government may command them or not. Absent the
creation of a truly impartial mediatory body – a prospect which seems unlikely,
to say the least – the choice would seem to be between two equally flawed possibilities.
In point of fact, of course – paying heed to the principle which Jefferson and
Calhoun each claimed to adhere to – the Constitution chooses the former. In all
areas in which the federal government rather than the state government is
granted authority – pursuant to Article VI – that authority is supreme. And in
all cases to be heard within the original jurisdiction of the state courts –
pursuant to Article III – the federal courts maintain appellate jurisdiction. What
this means, in practice, is that while a state court may indeed attempt to
invalidate a federal directive, the matter can be appealed to a federal
District Court, and then to a federal Appeals Court, and then on to the Supreme
Court, the final ruling of which represents the last word on the subject until
such time as a later ruling invalidates it or the Constitution is accordingly
altered. Once again, this procedure may not have been to the liking of people
like Jefferson and Calhoun. Indeed, one can rest assured that it was not. But
it is, regardless of the protests of those who would claim the mantle of strict
constructionist, entirely in keeping with the plain text of the Constitution.
Interestingly enough, the notion that someone
who claims to be a strict constructionist might actively disagree with some
aspect of the Constitution actually cuts to the core of one of the few major
clashes between the position put forward by Jefferson in his Kentucky
Resolutions and that which was articulated by Calhoun in his South Carolina
Exposition and Protest. Jefferson, as aforementioned, was not even in the
United States during the length of the Philadelphia Convention, and was almost
certainly too familiar with those who ultimately did attend to consider the
product of their efforts in any way sacrosanct. And while he was clearly
impressed enough with the Constitution, as ratified, to advocate for a strict
adherence to the text thereof, he certainly wasn’t about to give a pass to such
aspects as he found in practice to be more a hindrance to his conception of
good government than a help. The Necessary and Proper Clause, it should come as
no surprise, was most definitely one of those aspects.
To Jefferson’s thinking – in 1798, at least
– the plain statement that, “Congress shall have the power […] to make all Laws
which shall be necessary and proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this Constitution in the Government of
the United States, or in any Department or Officer thereof [,]” had thus far been
used to justify far more than its authors had ever intended. In his mind, the
words in question were, “Meant by the instrument to be subsidiary only to the
execution of the limited powers [;]” that is, to be used sparingly and narrowly,
rather than, “To be so construed as themselves to give unlimited powers, nor a
part to be taken as to destroy the whole residue of the instrument [.]” That
successive governments had effectively applied the latter interpretation was
accordingly a source of consternation for Jefferson, tending as it did, “To the
destruction of all limits prescribed to their powers by the Constitution [,]”
His solution? For the moment, concerned as he was with the pending application
of the Alien and Sedition Acts (1798), he had none to offer. At length, however,
he avowed that, “The proceedings of the general government, under color of
those articles, will be a fit and necessary subject for revisal and correction
at a time of greater tranquillity [.]”
It may be the case that Jefferson’s intention
with this pronouncement was merely to assure whomever of his supporters
happened to be reading his Kentucky Resolutions that their shared objections to
the rather flexible stance of the Adams Administration on the subject of
implied powers would indeed be addressed by way of further popular agitation in
the states once the present crisis – i.e. the Quasi-War (1798-1800) – had fully
abated. More states would publish resolutions, more Democratic-Republicans
societies – the local, grassroots precursors to the later Democratic-Republican
Party – would be organized, and the full weight of the domestic opposition to
the Adams Administration would be effectively honed and directed. Such
measures, if effective in securing key electoral victories, would certainly
seem to fall under the category of “correction.” But “revisal?” Behavior
certainly can be “revised,” but the term is more often used in reference to
written texts. And why not? Why wouldn’t Jefferson advocate for revising the
text of the Constitution so as to eliminate what he considered to be its most
serious flaw? The behavior of a given administration might indeed be changed –
corrected, as it were – by the skillful application of public pressure, but
such an outcome could hardly be considered a permanent solution. Only a revisal
of the source of said administration’s power – i.e. the Constitution – could
ever hope to prevent a return to the conduct which Jefferson and his cohorts
found to be so objectionable. Not only that, but by adhering to the remedy
offered by the Constitution itself for dissatisfaction with the text thereof,
the Sage of Monticello would strengthen his reputation as a faithful strict
constructionist and foreclose upon the possibility of his opponents further
declaring him to be an insurrectionary or a radical.
John C. Calhoun, by comparison, came
nowhere close to even hinting, in his South Carolina Exposition and Protest,
that he believed the text of the Constitution warranted some manner of
revision. On the contrary, it was his opinion that,
The framers of our Constitution have
not exposed themselves to the imputation of such weakness. When their work is
fairly examined, it will be found that they have provided, with admirable
skill, the most effective remedy; and that, if it has not prevented the danger
with which the system is now threatened, the fault is not theirs, but ours, in
neglecting to make its proper application.
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