Stepping back for a moment to consider
exactly what it was John C. Calhoun seemed to take issue with in his Exposition
and Protest as concerned the Tariff of 1828 and its effects on the economies of
the various states – as well as why his proffered solutions took the shape they
did – a pattern of thought begins to emerge which paints a fascinating picture
of American states-rights political philosophy as it was beginning to coalesce
in the middle of the 19th century. Its basis was very much that of
Jeffersonian strict constructionism, its general mood one of deep reverence for
the Founders, and its aim to assert the primacy of the states within the
framework of the Constitution. Attractive as each of these components may have
been, however, emotionally, aesthetically, practically, or philosophically, it
isn’t necessarily clear how well they all fitted together. In the final
analysis, the South Carolina Exposition and Protest is an argument against the
primacy of the federal government over those of the states resulting from the
passage of tax legislation which seemed to favor federal priorities over
regional concerns. Calhoun, speaking on behalf of his home state, did not like
that Congress passed a law which would drastically affect the economy of the
Palmetto State. He did not like that South Carolina was outvoted on the measure
in the House and the Senate and must simply accept what came next. He felt that
his home state should not be so totally bound to the dictates of federal institutions,
and that its sovereignty should entitle it to refuse cooperation. All of this was
fair enough, and far from unreasonable as the basis for larger conversation as
to the nature of the United States and whom it was supposed to serve. But as
soon as Calhoun started to invoke the Constitution and the Founders while
arguing in favor of the rights of the states, things started to get…messy…
Taking him at his word – and so discounting
the potentially disillusioning effects of having worked alternately against and
alongside figures like James Madison and James Monroe in the 1810s and 1820s – John
C. Calhoun was among the majority of his fellow Americans who, by the beginning
of the 1830s, had come to view the Founding Generation as something more than a
cohort of particularly impressive human beings. “They were, in truth, no
ordinary men [,]” he thus exclaimed in his Exposition and Protest. “They were
wise and practical statesmen, enlightened by history and their own enlarged
experience, acquired in conducting our country through a most important
revolution; and understood profoundly the nature of man and of government.”
Earlier in the same document, speaking of the supposed inability of the
Constitution to ameliorate the competing interests of the federal government
and the state governments, he spoke in similarly glowing terms. “The framers of
our Constitution have not exposed themselves to the imputation of such
weakness,” he asserted. “When their work is fairly examined, it will be found
that they have provided, with admirable skill, the most effective remedy [.]” Clearly,
regardless of what he had come to know from personal experience, Calhoun was
simply not prepared to countenance any species of attack upon the Founding
Generation. The Constitution, being the product of this selfsame cohort,
appeared to enjoy a similarly sacrosanct position in Calhoun’s moral universe; it
was perfect, ideal, unquestionable. And while its various provisions were
certainly vulnerable to misinterpretation – how else could such detestable
statutes as the Tariff of 1828 have been passed? – they could not ever be wrong
in themselves. This mindset, as it happens, is where the problem seems to
originate.
Notwithstanding his protestations to the
contrary, most of what Calhoun actually seemed to take issue with as concerned
the Tariff of 1828 – and which he called explicit attention to in his Exposition
and Protest – was rooted in the text of the Constitution itself. He argued, for
example, that the imposition by Congress of a protective tariff was
unconstitutional because its aim fell well outside the scope of the taxing
powers granted to that body. “The third section of the first article of the
Constitution authorizes Congress to lay and collect an impost duty,” he
admitted, “But it is granted as a tax power for the sole purpose of revenue, a
power in its nature essentially different from that of imposing protective or
prohibitory duties.” The Tariff of 1828, therefore, represented an
unconstitutional application of the taxing power of Congress and should
rightfully have been voided. Doubtless this seemed a convincing enough argument
to Calhoun and his allies. In point of fact, however, there were more than a
few things wrong with it. Putting aside the fact that the taxing authority in
question is spelled out in Section 8 or Article I rather than Section 3 of
Article I – an error quite possibly the consequence of a poor transcription –
the text in question does not actually say what Calhoun claimed. As cited
above, the author of the South Carolina Exposition and Protest attributed the
unenforceability of a protective tariff to the fact that the taxing power of
Congress, “Is granted as a tax power for the sole purpose of revenue [.]” In
truth, the clause in question only states that, “The Congress shall have Power To lay
and collect Taxes, Duties, Imposts and Excises [.]” There are no accompanying
caveats, no restrictions as to the permitted nature or purpose of levies, and no
other clauses serve to narrow its scope. Indeed, no mention is even made of the
work “revenue” in the whole of Section 8.
Whether Calhoun was aware of these facts or not would be difficult
to say for certain. In either case, he most definitely behaved as though he had
no knowledge of them whatsoever. Effectively summarizing his position a little
later in the same paragraph of his Exposition and Protest, he stated
accordingly that,
The Constitution grants to Congress the power of imposing a
duty on imports for revenue, which power is abused by being converted into an
instrument of rearing up the industry of one section of the country on the
ruins of another. The violation, then, consists in using a power granted for
one object to advance another, and that by the sacrifice of the original
object.
Two more facts, plainly observable
to any literate person in 1828, would seem to further disprove the substance of
this position. First, the very same section of the Constitution which Calhoun
attempted to claim prevented Congress from levying taxes for any purpose other
than the generation of revenue – which, again, it does not – also authorizes
that selfsame body, “To regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes [.]” Even if
Calhoun had been correct in his assertion that Congress did not possess the
power to lay taxes for the purpose of promoting certain domestic industries –
which, again, he was not – this “Commerce Clause” would seem to authorize it
anyway. What else is the legislative protection of domestic industry from
foreign competition but the regulation of commerce with foreign nations? How
else would one describe a mechanism for promoting the purchase of domestically
produced goods over their foreign equivalents than as a tool for regulating
commerce among the several states?
The clause is vague, to be sure, and does
not explicitly authorize the deployment of import duties for the purposes
intended by the Tariff of 1828. Nonetheless, the Supreme Court – bringing us to
our second relevant fact – had already ruled that this vagueness need not have
been construed as a limitation. On the contrary, the Marshall Court declared in
its finding in Gibbons v. Ogden (1824) that the authority of Congress to
regulate commerce was a broad or as narrow as that selfsame body needed it to
be. “If, as has always been understood,” the Court ruled,
The sovereignty of Congress, though
limited to specified objects, is plenary as to those objects, the power over
commerce with foreign nations and among the several states is vested in
Congress as absolutely as it would be in a single government, having in its
constitution the same restrictions on the exercise of the power as are found in
the Constitution of the United States.
According to this
interpretation of the Commerce Clause, Congress – having “plenary,” or
unlimited, authority over the objects within its explicit sphere – could define
for itself what constituted interstate or foreign commerce and which
regulations were needful or permissible. Calhoun, of course, might have
disagreed with this ruling. Indeed, it seems likely that he did. But by his own
admission, he was inclined to recognize it. Responding to a rhetorical question
as to the possibility of conflict between the laws of the United States and the
Constitution, he accordingly noted in his Exposition and Protest that, “A
remedy may be found in the power of the courts to declare the law
unconstitutional in such cases as may be brought before them.” One imagined he
would not have made such a statement if he did not believe it to be true.
And then, of course, there was the whole
issue of the so-called “Supremacy Clause.” As aforementioned, the passage in
question is to be found in Article VI of the Constitution and states very
plainly that,
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.
That Calhoun took
issue with the legal implications of this provision should by now be quite
obvious. The whole substance of his argument in favor of a supposed state veto
grated directly against its affirmation of the supremacy of federal power. Consider,
by way of example, what would happen if a state constitution declared that the
state in question was sovereign and autonomous and entitled to act in whatever
way its citizens authorized and then a federal judge ruled – for whatever
reason – that this was all well and good as long as the state government in
question didn’t violate federal law. A strict adherence to the Constitution
would seem to mandate absolute compliance. A federal judge had ruled, after
all, and the rulings of federal judges were superior to, “Any Thing in the
Constitution or Laws of any state [.]” Adamant though Calhoun was that, “The
only safe rule is the Constitution itself,” it is hard to imagine that he would
ever accept such an outcome. He believed – and argued, and asserted, and
declared – that the states were sovereign, that their sovereignty had not been
fundamentally diminished by the creation of a national government under the
Constitution, and that they were accordingly entitled to independently evaluate
federal statutes and nullify them at their own discretion. As the existence of
the Supremacy Clause seemed to defy this conception of state autonomy, so
Calhoun seemed content to act as though it didn’t exist.
Indeed, this seemed to be his
strategy overall. His convictions were what they were. He believed in the
primacy of the states and the fundamentally limited nature of the federal
government. He thought that it was improper for federal legislation to lend any
state or group of states any kind of advantage over the others, and he held
fast to the notion that federal legislation could be invalidated at the state
level. On their own, these were all perfectly reasonable positions. Coupled to
the further conviction that the only legitimate reading of the Constitution is
a close reading, however, and the whole lot ceased to make sense. The text of
Article I, Section 8 plainly contradicted his stated claims as to the powers at
the disposal of Congress. As did a recent ruling of the Supreme Court, whose
authority he claimed to recognize. As did the text of Article VI, which almost
completely invalidated his core premise. And what was Calhoun’s response? He
had none. He didn’t engage with the provisions of the Constitution which seemed
to contradict his established claims; he didn’t explain how it was that the
sovereignty of the states entitled them to powers that were not described in
the United States Constitution; he didn’t take the trouble to clarify how the
powers and restrictions he described could be rooted in texts that said either
nothing of the sort or the exact opposite. On the contrary, his plan seemed to
be to simply ignore anything and everything that didn’t speak to his position.
His convictions were what they were, and the Constitution agreed with him, and
that’s all there was to it.
What’s so mystifying about all of
this is how much easier Calhoun could arguably have made things for himself if
he had just dropped the whole idea that the Constitution was sacrosanct.
Doubtless he felt that this was not something he could do, that there was too
much to gain by claiming the legacy of Jeffersonian strict constructionism and
too much to lose by trying push against the popular habit of lionizing the
Founders and their works. Perhaps there was something to the latter concern.
Perhaps he would not have been near so influential had he openly attacked the
Constitution as an imperfect document in need of thorough revision. But it was
certainly possible to be a strict constructionist and an ardent supporter of
the rights of the states. Thomas Jefferson had been just that. His belief in
the ability of the states to nullify federal law was as misplaced as Calhoun’s,
but at least he was consistent in what it was he chose to attack. The Sedition
Act (1798), to which Jefferson’s Kentucky Resolutions was partly written in
opposition, did indeed take liberties with the plain text of the Constitution.
By making it a crime punishable by, “A fine not exceeding two thousand dollars,
and by imprisonment not exceeding two years [,]” to, “Write, print, utter or
publish […] any false, scandalous and malicious writing or writings against the
government of the United States, or either house of the Congress of the United
States, or the President of the United States [,] Congress has indeed plainly
violated the terms of the First Amendment. That Jefferson’s solution to this
misdeed was also unconstitutional certainly didn’t help his case, but at the
very least he could not be charged with drawing attention to something that did
not in the least bit warrant it. John C. Calhoun was not so fortunate.
In fairness, the author of the South
Carolina Exposition and Protest did not have all of the advantages in 1828 that
Thomas Jefferson enjoyed some thirty years prior. Or, perhaps more to the
point, he did not have one crucial advantage. Jefferson, though he
self-consciously identified himself as a strict constructionist who believed
that the plain text of the Constitution was the only valid guide to what
federal government could or could not achieve, was also a contemporary of the
fifty-odd men who originally created it. There were known to him, in all their
virtues and frailties, and he accordingly seemed to feel no particular need to
treat their work as though it was sacred. It was a useful thing they had
constructed, potentially, particularly if one adhered to its provisions very
closely, but it was far from perfect. If he felt it needed modification, he
would not hesitate to say so. And if he could lend his efforts to an attempt at
modification, he would do so. Calhoun, notwithstanding what he actually seemed
to think about the Constitution, was not nearly so free to say and to do as he pleased.
He had adopted the same basic approach to constitutional interpretation that
Jefferson had pioneered, but at a different time and for different reasons. No
doubt he also believed, as the Sage of Monticello had before him, that a close
reading of the Constitution was the best way to ensure that American liberties
were preserved. But having also come of age during a time when the Founders of
his nation were being swiftly elevated to a kind of socio-political godhood, it
was almost inevitable that Calhoun would come to understand the Constitution on
very different grounds than the aforementioned Jefferson.
If John C. Calhoun had been honest
with himself, he might simply have argued that the implications of the Tariff
of 1828 were cause to both reexamine certain provisions of the United States
Constitution and to consider certain amendments as it was determined they were
required. Plainly, this is what he wanted to do, what he wished he could do. But
in actual fact he either could not or would not. Maybe this was the result of a
purely strategic consideration. Notwithstanding his own decidedly mixed
experiences working against and alongside members of the Founding Generation,
maybe he was nonetheless forced to conclude that the larger share of his
countrymen would dismiss him out of hand if he dared to cast aspersions upon
the efforts of their secular saints. And then again, maybe it was as important
to Calhoun personally that the Framers remain untouched and untouchable as it
was to his countrymen who acclaimed George Washington as the Father of the
Nation and heralded James Madison as the Father of the Constitution. In either
case, the result would have been the same. None of this is to say, mind, that
there is anything wrong with arguing for the rights of the states. Nor, indeed,
is there anything fundamentally the matter with believing in the efficacy of
strict constructionism. It's just that these two strands of argument have so
often been combined – in the 19th century, in the 20th
century, and as frequently, now, in the 21st century. And it just
that the combination tends to be something of a self-negating muddle.
Am I wrong? Am I missing something? You tell me.
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