South Carolina Exposition and Protest, Part VI: Precisely Imprecise

            The fundamentally flawed nature of strict constructionism as a doctrine of constitutional interpretation – at least as it had been deployed since the 1820s – is made exceptionally clear when one examines certain key aspects of the arguments put forward by John C. Calhoun in his South Carolina Exposition and Protest. Notwithstanding whatever it was that the Constitution actually said, Calhoun was a man of particular convictions whose sympathies, in general, lay with the state governments rather than the federal government. This had not always been the case, to be sure. As aforementioned, he had spent the better part of the 1810s and 1820s arguing in favor of national solutions to what he perceived to be national problems – i.e. defense, infrastructure, commerce, etc. By 1828, however, his focus had shifted. Having previously favored tariffs as a means of promoting the growth of domestic industry, he now objected to them on the grounds that they enriched certain states only by impoverishing others. The fact that Calhoun’s home state of South Carolina had suffered economically as a result of the Panic of 1819 was doubtless the catalyst for this dramatic change of heart, though the arguments which he began to deploy were broader than this might indicate. As it happened, the doctrine of strict constructionism offered a ready-made solution for people like Calhoun who quite suddenly found cause to favor the notion of a limited national government. It emphasized the limited nature of federal power, played down the scope of the Necessary and Proper Clause, and played up the importance of the Tenth Amendment. That it was also straightforward, cohesive, and possessed the imprimatur of such towering figures as Thomas Jefferson and James Madison certainly did it no harm. Indeed, strict constructionism was almost exactly what Calhoun needed. The only problem with it was in its inherently limited scope of action.

            This fact was plainly a problem for Calhoun – whether he was willing to admit it or not – because the Constitution alone could not supply what he really wanted. He believed, consequent to successive federal tariffs that appeared to sacrifice the agricultural wealth of the Southern states in exchange for bolstering the manufacturing wealth of the North, that it was improper for the federal government to enforce such laws as effected the various states unequally. A valid stance, to be sure, and one which he was free to advocate. He was also of the opinion – separately, but for much the same reasons – that the essential sovereignty of the states unquestionably entitled them to the right to both assess the validity of federal law and nullify the same in the event that state prerogatives were threatened. Likewise, this was a perfectly reasonable opinion, and Calhoun most definitely had the right to argue in its favor. Where both of these positions became untenable was in Calhoun’s attempt to assert their validity – indeed, their supremacy – via the doctrine of strict constructionism. He claimed, in his Exposition and Protest, that the Constitution required the federal government to act upon the states with equal effect. He also claimed, in that same document, that the Constitution recognized the ability of the states to essentially veto federal legislation. He argued forcefully for these positions, and he argued at length. But in both cases, notwithstanding what he clearly wanted to be true, he argued fundamentally in vain. The Constitution was not on his side.

            Consider, by way of example, the first argument cited above. Chiefly in response to the passage of the Tariff of 1828 – essentially a piece of electioneering masterminded by Martin Van Buren for the purpose of securing the election of Andrew Jackson as President – Calhoun came to believe that it was inappropriate for the federal government to pass such laws as had different effects on different states. As it stood, the duties levied by the tariff on certain manufactured goods previously available at very low prices from European suppliers was having the simultaneous effect of bolstering Northern industry – by way of eliminating competition – at the same time that it forced Southern agriculturalists to pay higher prices for the processed materials they required. The result was unambiguous: an increasing loss of Southern wealth and an increasing gain in Southern resentment. To Calhoun’s thinking, this could not be allowed to continue, if for no other reason than that such inter-sectional animosity was fundamentally unsustainable. Attempting to communicate this point, he offered the following explanation. “If they, by superior capital and skill,” he wrote, referring to the Northern, increasingly industrialized states,

Should keep down successful competition on our part, we would be doomed to toil at our unprofitable agriculture, selling at the prices which a single and very limited market might give. But, on the contrary, if our necessity should triumph over their capital and skill--if, instead of raw cotton, we should ship to the manufacturing States cotton yarn and cotton goods, the thoughtful must see that it would inevitably bring about a state of things which could not long continue. Those who now make war on our gains, would then make it on our labor. They would not tolerate, that those, who now cultivate our plantations, and furnish them with the material, and the market for the products of their arts, should, by becoming their rivals, take bread out of the mouths of their wives and children.

            It may well have been the case that the emergence of such domestic, economic rivalries was functionally inevitable. Different regions of the country had different resources at their disposal, different strengths, and different traditions of labor and capital. And though all of them were ultimately tied into the same global market and subject to the same fluctuations of supply and demand, it was likely bound to be the case that at some point the success of one region might come at the expense of another. Whether or not it fell to the federal government to prevent such an outcome remains, to this day, something of an open question. But Calhoun, for his part, believed it was at the very least incumbent upon federal authorities not to encourage the emergence of the same. The situation created by the Tariff of 1828, he avowed, would have exactly this effect. “If not arrested,” he wrote, it must, “Bring the country to this hazardous extremity [.]” For that reason, the terms of the tariff must not have been allowed to persist. Based on the core principles of compact theory, this assertion would seem logical enough on its face. If, as compact theory asserts, the United States of America – specifically under the auspices of the US Constitution – was formed by the states for the purpose of allowing them to accomplish together what they could not accomplish separately, then it certainly stood to reason that federal laws which encouraged the formation of inter-state economic rivalries were fundamentally self-defeating.

Granted, the notion of “the greater good” does form some part of how compact theory functions.  Inasmuch as it holds to the idea that the utility of the majority should generally come before the objections of the minority, compact theory does make some allowance for ignoring dissent. There would seem to be limits, however, to how far this principle extends. A majority of seventy percent would seem to occupy a different moral dimension than a majority of fifty-one percent. If thirty percent of a community disagrees with an action to be undertaken by the same, it might reasonably be argued that giving in to the demands of this minority would represent a greater injustice than would obeying the will of the much larger majority. If, however, fifty-one percent of that same community feels one way and forty-nine percent feels another, the path of justice is not to clear. As compact theory would have it, a minority of forty-nine percent is not in a position to be very well served by the community to which it belongs, and might indeed be better off departing altogether and forming a separate community of its own. This principle, no doubt, is what Calhoun was driving at with the explanation cited above. There may indeed have been a greater good that the federal government was bound to serve, but a tariff which essentially pitted one half of the union of states against the other plainly failed to fulfill this mandate. And if it did, then it could serve no purpose which the union of states was bound to recognize.

Again, as far as theory goes, this is all fairly reasonable. If Calhoun truly believed that federal laws which, notwithstanding their stated purpose, ultimately served to pit different sections of the American republic against each other were incompatible with the very existence of a union of states, that was his argument to make. Flawed though this position may have been upon certain points, it nevertheless took as its central focus a series of questions which will never cease to be of enduring relevance within the realm of American political philosophy. Namely, what is the purpose of the United States of America, whom does it serve, and to whom is it accountable? Unfortunately for Calhoun – and indeed for all those who have since followed in his footsteps – he did not stop at merely seeking an answer. Rather, by way of the aforementioned theory of strict constructionism, he sought to offer a potential solution; an explanation of the relationship between the union of states and its constituent parts which he believed would make clear how the thing had originally been constructed and how, in practice, it was supposed to function. “The Government,” he wrote, referring to the explicit terms of the United States Constitution,

Is thus positively restricted to the exercise of those general powers that were supposed to act uniformly on all the parts--leaving the residue to the people of the States, by whom alone, from the very nature of these powers, they can be justly and fairly exercised, as has been stated.

If the Tariff of 1828 was allowed to continue in force, therefore – creating, as it did, an increasingly adversarial division between the Northern states and the Southern states – “The relation of equality between the parts of the community, established by the Constitution, would be destroyed [.]”

            Curiously enough, Calhoun made no mention in his Exposition and Protest of which specific clause of the Constitution he believed “positively restricted” the federal government to act in a uniform manner upon all the various states. Perhaps he felt that his readers would not need to have the clause in question pointed out. Being, as he was, patriots in good standing, they would already have the document memorized and ready for recall at a moment’s notice. Then again, perhaps he felt that drawing close attention to the specific clause in question would not have served his purpose. Notwithstanding his claim of adhering closely and rigorously to the plain text of the Constitution, it might have been the case in this instance that he preferred to leave things a little vague so that he could argue more flexibly as the situation at hand developed. In either case – indeed, in any case – there is likely only one passage to which Calhoun could possibly have been gesturing. Located in Section 8 of Article I – and functioning as a kind of postscript to the taxing powers delegated to Congress – it states very plainly that, “All Duties, Imposts and Excises shall be uniform throughout the United States [.]” As Calhoun appeared intent on arguing, this clause invalidated legislation like the Tariff of 1828 precisely because said tariff – by promoting the growth of industry in the North at the same time that it made agriculture in the South more expensive – did not act uniformly upon all parts of the American republic. Convincing though this assertion doubtless appeared to many of Calhoun’s countrymen, there was at least one thing wrong with it.

            Consider, for a moment, what is meant by the term “strict construction.” To apply a strict construction to the Constitution of the United States is to take what is written therein as the beginning and the end of the authority thereby envisioned. Reasonable inferences can make no difference, nor external materials, commentaries, or correspondence. The Framers may be in a position to clarify certain things – to clear up lingering ambiguities by way of revealing the contents of certain pertinent discussions – but this should not be permitted to displace the text itself. What is written is the supreme law of the land, not to expanded upon or used as the starting point for wild speculation, but to be understood and adhered to as closely as is practicable. Not only does this approach represent – to its advocates, at least – the most just form of constitutional interpretation – placing, as it does, the text approved by common consensus above the wheedling arguments of a handful of legislators and magistrates – but also the most sensible. Who can say, after all, beyond a shadow of a doubt what any framer of laws truly intended when they set about their work? Who can look into the words on a page and see into the hearts of those who inscribed them? Calhoun certainly appeared to be of this opinion. Early on in the text of his Exposition and Protest he stated, by way of observing the difficulties inherent in the long-term application of written statute, that, “The courts cannot look into the motives of legislators. They are obliged to take acts by their titles and professed objects, and if these be constitutional, they cannot interpose their power [.]” Granted, he was not always happy with the results of this arrangement, writing in the same paragraph that, “The Constitution may be as grossly violated by acting against its meaning as against its letter [,]” but in the end he nevertheless affirmed his belief in the efficacy of strict constructionism. “Ours is not a government of precedents,” he thus declared, “Nor can they be admitted, except to a very limited extent, and with great caution, in the interpretation of the Constitution, without changing, in time, the entire character of the instrument. The only safe rule is the Constitution itself [.]”

With these declarations in mind, one is accordingly given to wonder at the nature of Calhoun’s reading of the cited clause of Article I, Section 8. All that the text in questions says is that, “All Duties, Imposts and Excises shall be uniform throughout the United States [.]” The terms of the Tariff of 1828 do not violate this stricture. They do not apply only to the Northern states. They do not apply only to the Southern states. They apply to all of the states to that point admitted to the American republic without distinction, favor, or exception. To be sure, the effects of the Tariff of 1828 were not uniform throughout the whole of the American Republic. Under the terms thereof, Northern industrialists was free from having to compete with their European counterparts while Southern agriculturalists were forced to pay higher prices for manufactured goods. But the cited clause makes no mention of the duties, imposts, or excises levied by Congress having to be uniform in their effects. All that it says – reading it as plainly as possible, per the core principle of strict constructionism – is that the duties, imposts, or excises shall themselves be uniform. And so, indeed, they were.