Friday, July 10, 2020

South Carolina Exposition and Protest, Part V: My Old Kentucky Home, contd.

For his part, John C. Calhoun was not a stranger to some of the great figures of the Founding Generation. He had served in Congress during the Madison Administration, after all, and then as Secretary of War in the Monroe Administration. But even he almost certainly had reason to look back on some the Founders’ more famous efforts with awe and adoration. He had been a child in the 1780s and 1790s when the likes of Jefferson, Washington, Adams, and Madison helped to craft a constitution and erect a national government, held fast against the chaos unleashed by a war in Europe and ushered in a new era of popular democracy. This isn’t to say that he remained credulous into his adulthood on all matters pertaining to the Founders. Again, his service in Congress in the early 19th century often saw him exerting pressure on the Madison Administration in an attempt to direct it towards a desired end, and his time in the cabinet of President Monroe not infrequently witnessed disagreements between himself and the Chief Executive over matters of policy and administration. All that said, it nevertheless seems likely that Calhoun – given the era in which he came of age – maintained at least some degree of reverence regarding the Founders and the accomplishments. Or at the very least, he must have remained conscious into his adulthood that most of his countrymen remained as reverent of the Founding Generation as he had been in his youth. Consider, to that end, the following.

In 1798, at a time when most of the Framers were still alive and serving in government, Thomas Jefferson seemed to think that he could at least hint at the idea that perhaps the Constitution was in need of substantial revision. He was right, arguably, on at least two counts. The Constitution did want further revision, which it would next receive in 1804, but it would also resist further change – which is to say that the American people would resist further change – for another sixty years after that. By 1828, with John C. Calhoun re-elected as Vice-President to the second Chief Executive not a member of the Founding Generation, the result was arguably a degree of socio-political calcification. The United States of America was most definitely in the midst of a transformative period, the great offices of state being increasingly handed down to a new generation of public servants and statesmen. But while this passing of the baton undeniably marked the beginning of a dynamic new era in the history of American politics and culture, the popular conception of the nation’s founding was at the same time becoming increasingly passive and inflexible. Jefferson and Hamilton were dead. Madison was in retirement. The bitter partisanship of the 1790s had given way to an era of widespread consensus in the 1810s and 1820s. The American people no longer had cause to see the men who helped to forge their nation as human beings who sometimes bickered or acted selfishly. All that remained were the legends. All that they could remember were the demigods and the great feats.

The Constitution – being the actual words inscribed and handed down by the likes of Madison, Franklin, and Washington – was understandably central to this legacy. And while it may once have been the case that it warranted modification, the last such effort had taken place almost thirty years prior under the supervision of Jefferson and Madison themselves. What unhallowed hand would dare touch it now? Who would claim the right to substitute their judgement for that of the Framers? John C. Calhoun certainly would not, even if on some level he truly believed it should be done. Not only was it famously difficult to build the consensus necessary to have an amendment approved by two-thirds of the House, the Senate, and the various states legislatures, but it would perhaps have been even harder to convince the American people that such an endeavor was appropriate. Again, the last time the Constitution had been altered, Jefferson was in the White House, Madison was running the State Department, and John Marshall (1755-1835) was heading up the Supreme Court. The fact that the alteration in question was made successfully must have meant that what remained of the Founding Generation at least tacitly approved. By 1828, however, there were too few of them left to approve, and none of them in positions of power or influence. It therefore doubtless made perfect sense to someone like John C. Calhoun that calling for amendments to the United States Constitution was no longer a politically viable option. Better, under the circumstances, to place the blame for the crisis at hand on those who yet had access to the levers of power. Better to avow that there was in fact a “proper application” of the various provisions of the Constitution which it fell upon contemporary Americans to discover and implement. There was greater flexibility in this approach, and greater efficiency. And, ironically enough, it wasn’t very strict.

Obviously, this approach placed Calhoun substantially at odds with the cited sentiments expressed by Jefferson. As aforementioned, the Sage of Monticello was still in a position to both understand the Constitution as inherently flawed and to believe in – and advocate for – the efficacy of a formal revision. Calhoun, in more ways than one, did not have this luxury. By 1828, the Founders had passed almost completely into memory. They were no longer around to offer their blessings or condemnations, nor to remind their fellow countrymen of the lesser qualities that marked them out as ordinary human beings. Calhoun may not have needed the reminder – having worked, as he had, either in concert with or in opposition to several illustrious members of that selfsame cohort over the course of his political career – but his fellow Americans probably did. Rather than attempt to convince his countrymen that the likes of Madison, or Franklin, or Washington might have been mistaken, therefore – that their efforts at crafting a framework of government had proven inadequate – he instead set himself to the task of discerning the “truth” that lay buried in the text of the Constitution which successive generations had yet failed to uncover. By his own avowal, Calhoun was still a strict constructionist. He still claimed to believe that a close reading of the Constitution was the only correct reading. In practice, however, he advocated otherwise. Do not question the Framers, he said, for they, “Have not exposed themselves to the imputation of such weakness.” Yes, there is an amending formula, the purpose of which is plainly to allow unsatisfactory aspects of the Constitution to be remedied. And yes, the inclusion of such a formula plainly indicates that the Framers were conscious of their collective inability to come anywhere near to perfection. But forget all of that, Calhoun seemed to say. The Constitution is perfect, the Framers were geniuses, and it is we, their successors, who had failed. Do not look for a remedy in altering what is written; look for it, instead, in a purer reading of the same.

As troubling as Jefferson likely would have found such a conviction to be – that a document in which Alexander Hamilton had a hand should be treated as though it were carved in stone! – he and Calhoun did still seem to agree more than they found themselves at odds. Granted, the difference between advocating for a revision of the Constitution (as Jefferson did in his Kentucky Resolutions) and asserting that the Constitution was perfect and wanted only a more accurate interpretation (as Calhoun did in his Exposition and Protest) is rather significant. But the conclusions which these two men drew were nonetheless markedly similar. Writing in 1798, in the midst of the Quasi-War and the domestic panic that ensued, Jefferson claimed of the Alien and Sedition Acts recently passed by Congress and signed by President Adams that,    
     
These and successive acts of the same character, unless arrested on the threshold, may tend to drive these states into revolution and blood, and will furnish new calumnies against republican governments, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron [.]

Strong language, to be sure. The Sage of Monticello seemed to believe that the states were as much duty bound as individually inclined to declare certain federal laws to be null and void; indeed, that the very fate of the American republic rested on the ability and the willingness of the state governments to hold the federal government to account.

Calhoun, writing thirty years later in 1828, said very much the same thing. Speaking on behalf of his native South Carolina, he declared, that,

It will be her sacred duty to interpose—a duty to herself—to the Union—to the present, and to future generations—and to the cause of liberty over the world, to arrest the progress of a usurpation which, if not arrested, must, in its consequences, corrupt the public morals and destroy the liberty of the country.

As with Jefferson, Calhoun also seemed to see it as a duty on the part of the states to halt the implementation of such federal laws as seemed to run counter to the basic tenets of the American republic. The law in question might appear to be of limited significance; it might even enjoy the support of a majority of the people’s representatives in Congress. Such details made little difference. It was not the size of the infraction, but rather the cumulative effect; what Jefferson called, “Successive acts of the same character” and what Calhoun described as, “The progress of a usurpation [.]” Such things, both men avowed, must be “arrested,” lest they, “Destroy the liberty of the country” and, “Furnish new calumnies against republican governments [.]”

            The source of these men’s shared conception of the role of the states in preserving the American republic as a whole should, by now, be fairly clear. As aforementioned, Jefferson and Calhoun both appear to have been adherents of the “compact theory” of American republicanism, the central tenet of which is that the United States of America, as it exists under the auspices of the Constitution, was formed by an agreement of the states. The states, in consequence, are the primary actors within the political sphere imagine by compact theory, and the right to alter, dismiss, or dissolve the American republic lies entirely in their hands. As previously discussed, the explicit terms of the Constitution, as well as the circumstances of its creation, don’t really align with this understanding of how the United States of America actually functions, but, under the circumstances, this matter very little. Possessing a preexisting belief in the agency and significance of the individual states within the legal and political framework of the American republic would most definitely explain why it was both Jefferson and Calhoun separately avowed that it occasionally fell to the states to save the Union from itself. The American republic, in their minds, existed at the behest of the states and for the purpose of benefiting the states. It therefore only made sense that it would fall to the states to prevent the American republic from decaying to the point where it ceased to perform its intended function.

            As with the broader principles of compact theory, the Constitution has next to nothing to say about the role which the individual states may or may not play in preserving the integrity and the efficacy of the American republic as whole. The Framers – and James Madison in particular, if his entries in the Federalist Papers are any indication – seemed more intent on cultivating internal accountability than they were prepared to depend on the states to provide an external check against corruption. The House was supposed to check the Senate, Congress was supposed to check the President, and the Supreme Court was supposed to check everyone. Combined with the consistent accountability provided by a regular cycle of elections, the federal government was essentially supposed to regulate itself. This isn’t to say that the states couldn’t also serve as a check upon federal authority. It’s just that such a role is not dictated by the Constitution. In that sense, notwithstanding their strict constructionist bona fides, the notion that the state governments were duty bound to hold the federal government to account was something that both Jefferson and Calhoun brought to their respective arguments from outside the plain text of the Constitution itself. Or, to be more accurate, it is something that Jefferson brought to his argument and which Calhoun brought from Jefferson. It isn’t wrong, per se, nor is it unconstitutional in the usual sense of the word. Rather, it is extra-constitutional. The state governments may indeed be made to serve a useful purpose in checking the authority of the federal government, but they do so entirely on their own initiative rather than at the behest of anything within the Constitution itself. Neither Jefferson nor Calhoun may have been willing to admit this, but it is most definitely the plain truth.

            That this kind of thinking – i.e. that the Constitution supposedly requires things which its plain text nowhere states – lies at the very core of the strict constructionist mindset will hopefully be made clear by the time this present series concludes. Thomas Jefferson, writing in the 1790s at a time when the Constitution was not yet ten years in operation and many of its authors were still alive and serving in government, sought to articulate a distinct doctrine of statutory interpretation. If the union of states was to perform its intended function – that is, if it were to allow the various states to accomplish together what they could not accomplish separately – then the authority vested in the concomitant national government must needs strike a balance between power and restraint. It must be strong enough to achieve certain useful objectives over the petty objections of certain actors, but also limited enough so that it does not destroy the liberties of those whom it was intended to serve. The best way to achieve this balance, Jefferson declared, was by adhering very carefully and very strictly to the plain text of the Constitution. As laid out therein, it seemed, the Sage of Monticello was satisfied enough with the division of authority to want to see it maintained in perpetuity. Was the document in question perfect? No, it was not. The Framers themselves would have been the first to admit this, and Jefferson would most definitely have been the first to agree. But it was functional enough. And in the event that some aspect of it proved more troublesome than it was useful, there were a number of remedies which the American people might pursue. Amendments might be sought, for one. A dissolution might be sought, for another. These were not uncomplicated solutions, to be sure, but far from impossible. The American people had given rise to the Constitution, after all, and it was plainly Jefferson’s opinion that they could do with it what they wished.

            The core problem with this theory of constitutional interpretation – as discussed above, a reasonable enough notion on its own – lies in what became of it after its originators began to retire and die. For someone like Jefferson, who had no reason to be particularly precious about the Framers or their work, the theory had essentially two complimentary aspects. On one hand, there was the need to adhere as closely as possible to the Constitution as written so as to prevent the federal government from simply inventing powers for itself which its officers felt might be useful. And on the other, there was the knowledge that, when this first aspect ran up against its own limits – when it became clear that the Constitution as written was in some way lacking or flawed – the text in question could always be altered or abolished. The Constitution made this latter point clear by its inclusion of an amending formula. Not only that, but the process by which the document itself was drafted and approved showed plainly that the American people could create governments and abolish governments as they felt it served their needs to do so. Jefferson, of course, had seen all this for himself. He knew that the Framers were not infallible, and that their attempt to create a more stable, active government for the United States of America was just that: an attempt. People like John C. Calhoun – notwithstanding his more humanizing encounters with certain members of the Founding Generation – were comparatively far more likely to adopt the first principle of strict constructionism while entirely dispensing with the second.

The reason for this, as discussed previously, was that the intervening years – between Jefferson’s heyday in the 1790s and Calhoun’s in the 1810s and 1820s – had effectively transformed the members of the Founding Generation from a group of talented human beings who occasionally overcame their shortcomings in service of their countrymen to demigods who descended from the heavens to bestow the blessing of liberty upon the American people with flaming sword and gilded quill. Jefferson, who knew his colleagues to be far from perfect, accordingly understood that while the Constitution which a number of them had helped to construct was useful enough to merit adhering to very precisely, it was nonetheless very far from sacrosanct. If a given situation revealed it to be flawed, he accordingly would not hesitate to call for its revision. Calhoun, whether from personal conviction or simply a keen understanding of the prevailing mood of his era, could not make the same leap. He could, and did, echo Jefferson’s belief in the primacy of the states, the fundamentally limited nature of the federal government, and the need to adhere very strictly to the text of the Constitution. But he could not – or else he would not – follow the Sage of Monticello to the fullest expression of his political philosophy. The reason for this is plain enough. By 1828, the Founders had collectively passed beyond the realm of humanity and into the corpus of American myth. They, and their works, could no longer be questioned. The result of this is similarly obvious. Strict constructionism, as a doctrine of constitutional interpretation, had essentially ceased to function.

No comments:

Post a Comment