To be fair, it isn’t particularly hard to
understand how Calhoun ended up making the argument that he did. As
aforementioned, he believed it possible for a piece of federal legislation to
violate the spirit of the Constitution while still adhering to the letter of
the same. And he absolutely had valid reasons to feel that the effects of the
Tariff of 1828 placed an unnecessary degree of tension upon the relationship between
the Northern and Southern states. But he also claimed, as cited above, that,
“The only safe rule is the Constitution itself.” By that plain standard, his
later assertions that the federal government was, “Positively restricted to the
exercise of those general powers that were supposed to act uniformly on all the
parts” is rather difficult to validate. Within the specific realm of taxation,
Congress is indeed required to exercise its authority to apply duties, excises,
and levies in a uniform manner. To claim that this provision applies to all of
the powers at the disposal of the federal government would be to drastically
widen the significance of what is in actual fact a very narrow stipulation. To
claim that it applies to all powers granted specifically to Congress would seem
to amount to much the same. Even asserting that a tax which is uniform in its
application but not in its effects violates this requirement steps beyond the
plain meaning of what is written. Granting that the Framers may have intended
this proviso to specifically prevent exactly the kind of outcome which the
Tariff of 1828 brought about, establishing such a claim would seem next to
impossible. The only way to derive such a meaning from the clause as written
would involve conjecture, inference, interpretation; in essence, an argument
about what the Framers meant as well as what they wrote. By Calhoun’s
own admission, such arguments were potentially dangerous because of how far
they might end up leading federal law away from its foundation in the plain
text of the Constitution.
Strange though it absolutely was that the author
of the South Carolina Exposition and Protest should claim affirm the validity
of strict constructionism on one hand and attempt to significantly expand the
scope of a constitutional stipulation on the other, the document in question
contained another assertion on his part that was somehow stranger still. It was
one thing to infer intention based on the terms of a specific passage of the
Constitution, but it was quite another to assert the existence of a specific –
and exceedingly significant – power on the part of the states on the basis of a
general principle of political philosophy. All the same, this is exactly what
Calhoun attempted to do. To his thinking, it seemed, the fact that the
Constitution acknowledged the sovereignty of the individual states – that it
did not, in explicit terms, convert the United States, “Into a great
consolidated government, with unlimited powers, and […] divest the States, in
reality, of all their rights” – implied a great deal about the intended
relationship between the federal government and the state governments. For one
thing, as aforementioned, it indicated to him that the states continued to
possess the right to judge of infractions upon their respective liberties. “The
right of judging, in such cases,” he argued accordingly, “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.” Since the ratification of the Constitution had not required the states
to give up their sovereignty – an act which they surely would not have agreed
to undertake – this power must therefore have remained intact.
Problematic as this claim against the
authority of the federal government plainly was – and is, and likely always
will be – it was Calhoun’s concomitant inference that arguably represented the
greater leap of political logic. It wasn’t just that he felt the states could
freely determine the validity of federal laws as measured against their
sovereign liberties; he asserted, in no uncertain terms, that the Constitution
itself functionally granted the states a veto against any federal action which
they felt infringed upon their authority. His explanation of how and why this
was the case was distressingly lacking in specifics. “The existence of the
right of judging of their powers,” he began,
So clearly established from the
sovereignty of States, as clearly implies a veto or control, within its limits,
on the action of the General Government, on contested points of authority; and
this very control is the remedy which the Constitution has provided to prevent
the encroachments of the General Government on the reserved rights of the
States; and by which the distribution of power, between the General and State
Governments, may be preserved for ever inviolable, on the basis established by
the Constitution.
Despite claiming
that a state veto on federal action, “Is the remedy which the Constitution has
provided to prevent the encroachments of the General Government on the reserved
rights of the States [,]” Calhoun nowhere indicated in which article or section
of that selfsame document such a remedy might be found. Despite arguing that
precedents could not be relied upon when attempting to establish the scope of
federal authority, “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 [,]” Calhoun nevertheless avowed that, “The
existence of the right of judging of their powers, so clearly established from
the sovereignty of States, as clearly implies a veto or control [.]” What could
the claimed existence of a veto on the part of the states possibly be but an
extra-constitutional precedent? How could it do otherwise but change, “In time,
the entire character of the instrument [?]”
As it happened, Calhoun felt no
particular need to answer such questions, or any like them. On the contrary,
what further references he made to a supposed state veto only reaffirmed what he
had asserted previously as though the logic deployed therein was as infallible
as it was self-evident. Speaking to what he felt to be the genius of the
Framers, for example, he later described the supposed state veto as being of a
piece with the various other checks and restrictions embedded in the structure
of the Constitution. As the several branches of the federal government were set
against each other, and a veto provided to the Chief Executive, “To guard the
supremacy of the Constitution over the laws,” so it was that Calhoun also
believed,
In the division of the sovereign
authority between the General and State Governments, by leaving to the States
an efficient power to protect, by a veto, the minor against the major interests
of the community, the framers of the Constitution acted in strict conformity
with the principle which invariably prevails throughout the whole system, where
separate interests exist.
Though Calhoun was
unwilling – or perhaps unable – to admit it, the differences between the specific
safeguards he described amounted to far more than a mere question of
application.
The fact that
the President of the United States possesses a veto against such acts as are
approved by Congress is the consequence of a specific clause of the Constitution.
The same could be said of the conflicts which tend to arise between the Senate
and the President on the subject of judicial, diplomatic, or executive appointments,
between the Supreme Court and the President on matters of executive authority,
and between Congress and the Supreme Court on matters of law. This is
emphatically not the case, however, when it comes to the supposed state veto.
Nowhere in the text of the Constitution is it mentioned in anything like a
clear and unambiguous manner that the states possess either the right or the
ability to evaluate federal laws or actions and declare them null and void.
Nowhere, indeed, is this even remotely hinted at. The text of the Tenth
Amendment would seem to be the only passage therein that comes particularly
close, stating as it does 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.” But while the practical application of this
provision would indeed seem to imply the existence of a mechanism by which
state and federal powers might be clearly and efficaciously distinguished, the
document to which this same amendment was appended makes it substantially
explicit that the federal authority would provide said mechanism rather than
that of the states. As the second clause of Article VI clearly affirms,
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.
As the Tenth
Amendment forms an integral part of the Constitution, it therefore fell to the
other institutions created and empowered by that selfsame document to provide
the means of its enforcement. They might do this by law, or by judicial ruling,
or by executive decree, but in all cases the result would be the same. Whatever
decision is ultimately arrived at by federal authorities, that decision will be
superior to any of those which might also have be rendered by any of the
various states. This, plainly, is what the Constitution requires.
Later still – indeed, at the very
end of the text of the South Carolina Exposition and Protest – Calhoun once
again made mention of the supposed state veto as though there was no reason
whatsoever to doubt its existence. Specifically, while asking and answering a
series of questions as to the nature of the various safeguards embedded in the
Constitution – “Are there, among the several States, separate and peculiar geographical
interests? To meet this, a particular organization is provided in the division
of the sovereign powers between the State and General Governments,” etc. –
Calhoun posed the following response to the query, “May the General Government,
on the other hand, encroach on the rights reserved to the States respectively?”
“To the States respectively [,]” he wrote, “Each in its sovereign capacity is
reserved the power, by its veto, or right of interposition, to arrest the
encroachment.” The real question, of course – the one to which Calhoun surely
would not have been able to offer an answer – is, “reserved” in what sense?
Where might one find the textual basis of this right of interposition? If the
author of the South Carolina Exposition and Protest had a response at the
ready, he evidently made a point of keeping it to himself. Indeed, he rather seem
to proceed as if the answer was patently obvious.
Consider, to that end, the question
and the answer that immediately followed that which is cited above. “May this
power be abused by a State,” Calhoun wrote, speaking of the supposed state
veto,
So as to interfere improperly with
the powers delegated to the General Government? There is provided a power, even
over the Constitution itself, vested in three fourths of the States, which
Congress has the authority to invoke, and may terminate all controversies in
reference to the subject, by granting or withholding the right in contest.
This would seem,
upon consideration, to be a rather fascinating reply. Bearing in mind that the
only power which might be considered to exist, “Over the Constitution itself,” and
that is also, “Vested in three fourths of the States, which Congress has the
authority to invoke” is the amending formula located in Article V, Calhoun was
essentially assuring anyone who perhaps felt that the possession by the states of
a veto on federal activity constituted a potential source of abuse that said
veto could always be moderated or removed by way of a constitutional amendment.
While this statement was doubtless intended by Calhoun to once more reaffirm
his belief that the state veto was indeed justified by the actual text of the
Constitution, it might also have represented something of a bait-and-switch.
Nothing in the text of the Constitution, recall, actually describes the means
by which a state might invalidate a federal law. Indeed, Calhoun more than once
indicated that said power was derived more from the nature of the state/federal
relationship than from any clause or passage of the Constitution itself. If
such a power did exist in the hands of the states, then, but was not based in a
specific constitutional provision, how would one go about amending it? What,
exactly, was an amendment supposed to change?
Was it as simple
as declaring explicitly that the states could not veto federal law? Based on
Calhoun’s affirmation of the continued autonomy of the states, there wouldn’t
seem to be much reason to think that he or his cohorts would respect such an
assertion of unilateral federal authority. If they truly believed that state
sovereignty was immutable and eternal save for a declaration by the states to
the contrary, then even a constitutional amendment specifically restricting
state power should have been subject to review and rejection. Was the
sovereignty of the states to be overtly stripped away, then? Was that the only
way to guarantee the supremacy of federal power? The problem at hand would be
solved, to be sure, but the states would surely never permit such a thing.
That, in the end, is where Calhoun seemed content to rest his case. He made a
show of being logical, flexible, and reasonable. He claimed that a state veto
was no different than any other constitutional check or balance and assured all
those in doubt that the conflict at hand was indeed quite tractable if the
parties involved could gather the requisite support. But in actual fact his
position was both vague and unyielding.
All textual
evidence to the contrary, John C. Calhoun believed that the individual states
retained their full and complete sovereignty notwithstanding their admission to
the United States of America. Their citizens, it was true, had chosen to adopt
the Constitution, and thereby to create a national government on a more
ambitious scale and possessed of far greater authority than that which had
existed previously. But in so doing, they had not simultaneously reduced the
states to a subservient position. The states, he maintained, could take or
leave any aspect of the federal government as they felt the need to do so. They
could reject federal laws, invalidate federal regulations, and even ignore such
aspects of the Constitution itself as conflicted with the exercise of their
inviolable sovereignty. Where was Calhoun’s proof? Nowhere, and everywhere. The
Constitution recognized the fundamental autonomy of the states, he said,
pointing to no provision in particular so much as the fact that the document in
question did not explicitly do away with state sovereignty. And that
fundamental autonomy implied the existence of a state veto, he said, while also
somehow claiming that legal precedents which deviated from the explicit text of
the constitution were dangerous to American liberty. And in the event that this
state veto became a source of mischief? Well, he assured his countrymen, there
was always the possibility of an amendment. Granted, the states would almost
certainly never agree to give up what autonomy they yet retained under the auspices of the Constitution so
that certain kinds of federal taxation schemes might be more easily be pursued,
but that was hardly the fault of Calhoun and his cohorts. They did not set the
rules of the game. Indeed, they made a point of saying so. They merely played
it as best they could.
It would be very
difficult to say whether or not the basic tenets of this position, as expressed
in the cited passages of Calhoun’s South Carolina Exposition and Protest, were
intended by their author to be as maddeningly contradictory as they appear. It
seems entirely possible Calhoun believed that the best way to promote his view
of the nature of state sovereignty – a position which it need not be doubted he
took to sincerely – was to muddy the waters as much as possible by claiming a
strict adherence to the Constitution while making a number of exceptionally
bold constitutional pronouncements not at all justified by the relevant text. Keep
things vague, may well have been his intention; seize the moral high ground;
don’t fetishize the truth when what feels right will get you what you want.
Perhaps this is altogether too cynical a read on the man, but it nonetheless
remains a distinct possibility. By the same token, of course, Calhoun might not
have been aware that he was weaving such a confusing philosophical tapestry. He
believed in the sovereignty of the states. He accepted Jefferson’s prior
assertion that the plain text of the Constitution was the only valid source of
federal power. He felt that it was inappropriate for the federal government to
stoke economic tensions between the various states. Perhaps, in his mind, it
was possible to tie all of these threads into a singular, consistent, convincing
strand of argument. But on paper, plainly, the thing came unraveled.
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