South Carolina Exposition and Protest, Part III: My Old Kentucky Home

As earth-shattering as John C. Calhoun’s South Carolina Exposition and Protest arguably was upon its publication in December of 1828 – specifically in the way that it threatened to dissolve the legal framework which had bound the various states together under the auspices of the federal government since 1789 – the fundamental principles which it espoused were not, in truth, wholly novel. While it was true that no one had ever before claimed that each of the individual states held the right to essentially veto a given piece of federal legislation, the notion that a state should determine to its own satisfaction whether or not the various branches of the federal government were performing their duties in accordance with the explicit terms of the Constitution had been articulated at least once before. Writing in 1798 in response to the passage of the Alien and Sedition Acts, Thomas Jefferson (1743-1826) had famously declared in his “Kentucky Resolutions” – so called because they were approved and published by the legislature of the state of Kentucky – that the federal government,

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.

The exact significance of this assertion, it must be said, was not precisely repeated in Calhoun’s Exposition and Protest. Calhoun – as this present series will come to show – effectively sought to justify the nullification of federal law in any case in which the vital interests of a given state were threatened. Jefferson, by contrast, sought to apply the principle of nullification only in such instances as it could be shown that the federal government had violated the explicit terms of the United States Constitution. Notwithstanding this crucial disparity of application, however, it is very clear that Calhoun was still deeply influenced by Jefferson’s core argument. Like the Sage of Monticello, he also seemed to believe that the American republic was a compact of states formed for an explicit purpose beyond which it could not extend its authority, that the government thereof could not be permitted to serve as the final judge of its own actions, and that the arresting of federal power by the states was likely the only way to stave off a bloody dissolution of the aforementioned compact.

A belief in the principle of strict constructionism is undoubtedly one of the areas in which Calhoun’s Exposition and Protest most closely aligned with Jefferson’s Kentucky Resolutions. Indeed, it was probably the one aspect of Calhoun’s political convictions that was most heavily influenced by Jeffersonianism as an ideology and Thomas Jefferson as its originator. Consider, by way of example, the following statement made by Jefferson in his Kentucky Resolutions. The states, he declared, in ratifying the Constitution, “Constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government [.]” A plain enough doctrine, in theory. Now consider Calhoun’s statement made some thirty years later. “The General Government [,]” he wrote in his Exposition and Protest,

Is one of specific powers, and it can rightfully exercise only the powers expressly granted, and those that may be necessary and proper to carry them into effect, all others being reserved expressly to the States or to the people.

To Calhoun’s mind, it seemed, as to the Sage of Monticello’s, the United States Constitution represented both a grant of power and a restraint upon its exercise. According to its various articles, sections, and clauses, the separate branches of the federal government could do a great many things which the individual states could not. Congress could lay taxes, and borrow money, and declare war; the President commanded the armed forces, and made treaties, and appointed ambassadors; and the Supreme Court ruled on all such cases as involved the federal government directly, or pertained to maritime jurisdiction, or involved more than one state. But at the same time that all of these powers are granted by the Constitution, the strict constructionist line avows, all others not named are specifically forbidden. The logic behind this belief – as indicated by both Jefferson and Calhoun – is essentially twofold.

On the one hand, because the Constitution was drafted and ratified in order so that the various states could achieve together what they could not hope to achieve separately – a “special purpose,” one might say – anything which a state might accomplish on its own accordingly falls outside the purview of the resulting federal government. The states might indeed require a single federal authority to represent them in the realm of foreign affairs, for example, but it did not then follow that the states required that same authority to fund and build roads or to establish a national police force. Whatever the states could do for themselves, in essence, the states should do for themselves. And then, of course, there is the matter of the Tenth Amendment. Said addendum to the Constitution – ratified and effective as of December 15^th, 1791 – states 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.” According to people like Jefferson and Calhoun – as indicated by their common reference to the same – the meaning of this clause is very, very simple. It is, in essence, that whatever powers which the Constitution does not specifically grant to the federal government cannot then be exercised by the federal government. The wording of the Necessary and Proper Clause of Article I, Section 8 might seem to complicate this somewhat, stating as it does that Congress possesses 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.” In practice, however – and which Calhoun seemed intend on pointing out – strict constructionism insists that there is no complication. The clause in question can only be invoked in order to justify the exercise of powers demonstrably incidental to the authority explicitly granted to Congress by the Constitution. If a clear connection cannot be demonstrated, the power in question is thus reserved to the states.

As plain as this all might seem – and as plain the likes of Jefferson and Calhoun believed it to be – there is a rather thorny presupposition at the core of strict constructionism which its proponents so often take for granted. If their respective treatises on the subject are any indication, Jefferson and Calhoun most certainly did. Writing in 1798, Jefferson declared that the state of Kentucky, “Faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, […] is sincerely anxious for its preservation [.]” Writing thirty years later in 1828, Calhoun said much the same. “The only safe rule is the Constitution itself [,]” he avowed, “Or, if that be doubtful, the history of the times. In this case, if doubts existed, the journals of the Convention itself would remove them.” While the exact wording of their respective assertions differs significantly, the meaning which both men sought to convey is essentially the same. Both Jefferson and Calhoun – and any number of strict constructionists writing before, during, or since that time – believed that the “intent and meaning” of the Constitution was plain, that it was plain at the time that said document was ratified, and that any doubts as to same may be cleared up by application to, “The history of the times [,]” or, “The journals of the Convention itself [.]” In actual fact, of course, very little about the intentions of the Framers can truly be described as “plain,” and any attempt to reconstruct the same is doomed to come up frustratingly short.

Consider, to that end, exactly what it was Jefferson and Calhoun were saying. Jefferson wrote, in his Kentucky Resolutions, that the Constitution should at all times be adhered to, “According to the plain intent and meaning in which it was understood and acceded to by the several parties [.]” The biggest problem with this statement is that it presupposes a quality of agreement among the Framers at the time the Constitution was drafted and among the delegates to the various ratifying conventions in the states that quite simply never existed. Not only did the state conventions fixate upon different aspects of the proposed constitution in the course of their respective debates, but the Framers themselves held famously divergent opinions as to how the resulting national government was supposed to function. Granted, most of these people did ultimately agree as to the specific words by which the government in question was to be ordered and described, but this cannot be said to prove the existence of anything like a shared understanding.

Alexander Hamilton and James Madison, to use a particularly famous example, were both present for the whole of the Philadelphia Convention (1787), both participated substantially in the debates which occurred therein, and both authored essays in support of ratification under the common title of “The Federalist.” But while the fact of these shared endeavors might lead one to believe that Hamilton and Madison must have harbored essentially the same conception of the Constitution and its significance, subsequent events show quite clearly that this was not at all the case. Hamilton, as one of the principle members of the Washington Administration, went on to demonstrate a very firm belief in the expansive nature of federal power. The authority at the disposal of Congress and the President was not limited solely to what was written in the Constitution, he argued, but rather included all such powers as might become “necessary and proper” to servicing the responsibilities laid out by the same. Madison, in stark contrast, went on to advocate for a very limited view of federal power. As a Congressmen from Virginia, he vehemently asserted that federal authority, if permitted to expand, would very quickly present an imminent danger to the states. It therefore fell to the states themselves to monitor federal activity and speak with a common voice upon observing infractions upon their liberties.

Marking this drastic contrast in the manner in which Hamilton and Madison respectively viewed the Constitution, how could anyone claim that there was such a thing as a, “Plain intent and meaning in which it was understood and acceded [?]” The fact that Jefferson had not attended the Philadelphia Convention himself – having at that point been assigned to serve as United States Minister to France – might seem like a rather juicy detail to point out just now, but in truth it is entirely immaterial. To say that Jefferson couldn’t really speak to what the Framers intended because he hadn’t been in the room during the debates in question – while quite probably true – rather misses the point. Even people who had been in the room, and who had contributed significantly to the end result, couldn’t agree on the meaning and implications of the common product of their work. Was it just that some of them right and some of them wrong? Jefferson probably would have said so. Indeed, he did say so, siding time and again with the Madisonian interpretation of the constitutional balance of power. But who was Jefferson to say what was right and what was wrong? How had he arrived at his determination? How had Madison? In actual fact, there was not – is not, can never be – a “plain intent and meaning” to any part of the United States Constitution. Some clauses, on balance, are fairly unambiguous, requiring little in the way of interpretation. But others are comparatively broad, necessitating some degree of analysis before their significance can be determined. Exactly why this is the case can never be known with absolute certainty. Regardless of what the Framers said and wrote at the time and thereafter, their truest intentions were known only to themselves. All that matters, then, is what can be argued, or reasoned, or justified at any given time.

    

Calhoun, of course, was of like mind with Jefferson. Granted, he may not have said that there existed a “plain intent and meaning” by which the Constitution was “understood and acceded,” but his assertion that uncertainty might be easily dispelled by paying heed to “the history of the times” and, “the journals of the Convention itself” amounts to much the same thing. By using the phrase “the history of the times,” Calhoun was essentially implying that there existed among his fellow Americans – circa 1828, at least – a common understanding of the culture, philosophy, and politics of the Founding era. If one merely kept this understanding in mind, he seemed to be saying, one could successfully reason though any doubts as to the meaning and intent of the United States Constitution. There are, on cursory examination, at least two problems with this assumption. First, it presumes that everyone living in what for Calhoun was the present – again, 1828 – would possess substantially the same understanding of the Founding era. Depending the age, occupation, or social standing of the individual in question, there are a great many reason why this might not have been the case. People who have had different experiences with concepts like wealth, and social privilege, and work are bound to make different assumptions as to why people in the past acted the way that they did.

Second, the notion that there is a common –i.e. correct way – to understand any given era in the history of humanity would effectively seem to preclude the possible existence of historical outliers. Perhaps, as Calhoun would seem to have it, the Founders were exactly representative of the era in which they lived, their priorities having been wholly shaped by the mores and customs of society as it then existed. But what if they weren’t? These men, after all, were famous for having defied some of the most entrenched customs of their age. What if that same sense of defiance which they expressed very publicly by daring to take up arms against British authorities colored their private convictions as well? Most of the Founders’ Southern cohort did own slaves. And most of this same group endeavored to protect the institution as a result. But did this mean that they were pro-slavery in every sense of the term? That they never harbored any uneasiness as to the moral dimensions of the practice? That they didn’t feel personal guilt and shame at the same time that they expressed public support for its continuation? In actual fact, such a division between personal feeling and public posture was quite common. Men like James Madison and Thomas Jefferson, whose livelihoods – as they knew them – depended on the existence of chattel slavery, also freely admitted that the practice was immoral, shameful, and should at length have been done away with. Reference to “the history of the times” likely would not capture this dichotomy. From a broad historical perspective – of the sort to which Calhoun seemed to be appealing – Southerners in the late 18^th century United States were resolutely in favor of slavery and would not have countenanced any attacks against it. This is true, to be sure, but only partially. Such a perspective is accordingly bound to create a misleading image of the past for those who attempt to apply it. One could read the Constitution in the belief that all of its Southern authors were resolutely in favor of slavery, but this might lead accordingly to a mistaken impression as to their feelings in the present and their intentions for the future.

And then, of course, there is Calhoun’s appeal to, “The journals of the Convention itself.” These, as discussed previously, were the firsthand accounts of the Philadelphia Convention recorded primarily by James Madison over the summer of 1787. Conscious, it would seem, of the significance of what he and his fellow delegates were attempting, Madison in particular took very careful note of the subject and progression of each day’s debate, identifying speakers by name, recording votes, and quite rigorously charting the process by which the Constitution was constructed. But while these accounts, among the most complete as regards the events of the Constitutional Convention, are rightly regarded for their meticulousness, their ability to offer truly objective insight into the intentions of the Framers regarding this or that passage of the Constitution is rather called into doubt when one pays heed to a certain complicating factors. For one thing, it is by now well known that James Madison became fairly obsessed, in the final years of his life in the 1820s and 1830s, with what he believed would be his legacy as one of the founders of the American republic. To a large extent, this obsession merely took the form of locating, collating, cataloging, and condensing the various papers he had accumulated over the course of his lengthy public career. But in some cases – evidently those in which Madison feared his youthful mistakes might not be understood as such – he went a fair bit further. He started modifying documents. He changed names, dates, deleted whole passages, and even forged the handwriting of past correspondents. For a man who had lived practically his entire adult life in service to his county, it was a remarkable expression of intellectual vanity. But however one might choose to reconcile it – that Madison was merely self-advocating, or that his advanced age was the cause of some form of psychological agitation – the fact itself remains. Madison’s account of the Philadelphia Convention was quite probably subject to preferential editing. And if Madison could not be trusted, what of his contemporaries who had been less scrupulous in their dedication to the public good? What of their accounts? What of their objectivity?

That fact that these kinds of questions could not – indeed, cannot – be answered is precisely the reason why Calhoun’s cited assertion is such a troubling one. If the most complete “journal” of the Philadelphia Convention, recorded by one of the most intelligent, insightful, and conscientious individuals among the Founders was still very likely subject to ex post facto modification, then there would seem to be no point in hoping that any firsthand account recorded in the moment might serve the purpose of revealing the “true” meaning of the various articles and clauses of the United States Constitution. If the debates in question had all been recorded and transcribed exactly, then perhaps they might be of some use. But there is, in fact, no reason to believe that they were. The selfless, public-spirited Framers of 1787 – if ever they were as selfless as they claimed – almost to a man became the petty, self-interested politicians whose inability to agree on the purpose and scope of the federal government gave rise to a series of bitter partisan conflicts that lasted from the early 1790s through the late 1810s. Why should anyone trust anything they had to say on the subject of the Constitution just because they had a hand in drafting it? What gave credence to their interpretation above any and all others? Even if the records could be trusted, they were not what Calhoun seemed to affirm. They were not clear, unambiguous statements as to the meaning and significance of the Constitution in its various parts. Rather, they were the accounts of a whole series debates within which disagreement was common and consensus quite rare. People agreed here, clashed there, were of like minds again a little later, and came out somewhere in the middle when all was said and done. There was room for nuance, in as much as the floor was open to any and all who wished to make themselves known, but the final vote was always either for or against, and almost nothing that was ultimately agreed on was to everybody’s satisfaction.

Consider, by way of example, the events of September 12, 1787 as recorded by the aforementioned Virginia delegate, James Madison. It was a productive day, by and large. Much was agreed upon that made it into the final draft. But inevitably, understandably, debate eventually broke out. First, the assembled delegates discussed amending a clause they had previously settled requiring a three-fourths majority in Congress for the purpose of overturning a presidential veto to instead require a two-thirds majority. Some of those present – including North Carolina’s Hugh Williamson (1735-1819), who introduced the motion – believed that three-fourths placed too much power in the hands of the President. Others, like Pennsylvania’s Gouverneur Morris (1752-1816) and New York’s Alexander Hamilton (1755-1804), argued that the proposed two-thirds requirement would disadvantage more distant states whose representatives would be less often present in Congress and who were accordingly in need of, “The interposing check of the President.” In the end, as always, the matter came to a vote. The delegations from Massachusetts, Pennsylvania, Delaware, and Virginia voted no. Connecticut, New Jersey, Maryland, North Carolina, South Carolina, and Georgia voted yes. New Hampshire was divided. The motion was carried, six to four in favor. 

Later that same day, resulting from another motion by Hugh Williamson on the question of guaranteed jury trials in civil as well as criminal cases, a debate began on the subject of drafting a national Bill of Rights. Virginia’s George Mason (1725-1792) introduced the idea, stating that, “A general principle laid down on this and some other points would be sufficient [,]” and that the resulting document, “Would give great quiet to the people [.]”  Elbridge Gerry (1744-1814) of Massachusetts concurred, moving that a committee be formed to consider and draft a national Bill of Rights. Connecticut’s Roger Sherman (1721-1793) countered by claiming that, “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient [.]” Mason disagreed with this assessment, pointing out that, “The Laws of the U. S. are to be paramount to State Bills of Rights.” Again, the matter came to a vote. New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia all voted no. Massachusetts abstained. The motioned failed, ten to zero against.

Now consider, for a moment, the dynamics of these two debates and what they reveal about the relationship between the Framers and the Constitution of the United States. The accounts of the Philadelphia Convention may indeed be an invaluable source of information as to the motivations and intentions of the delegates who served therein, but they also make it quite clear that the intentions of individual delegates did not always have much bearing on the final result. Recall the outcome of the first debate. Williamson was from North Carolina and was in favor of the motion, and North Carolina did vote in favor. And Morris was from Pennsylvania and was against the motion, and Pennsylvania did vote against it. But Hamilton was from New York and was against the motion, and he didn’t vote at all. Granted, there exists a clear enough explanation as to why this was the case. Hamilton’s fellow New Yorker’s John Lansing (1754-1829) and Robert Yates (1738-1801) having departed Philadelphia quite early in the proceedings of the Convention, he likely felt it improper to vote entirely on his home state’s behalf. All the same, the end result is striking in its effect. Reading Madison’s account of the events of September 12^th, 1787, one indeed gains some insight into Hamilton’s intentions vis-à-vis the operation of the presidential veto. But in the end, regardless of what he may have felt about the subject, Hamilton had no effect on the final form which it assumed.

Further recall, with this same phenomenon in mind, the outcome of the second debate. Mason, of Virginia, and Gerry, of Massachusetts, were both in favor of the motion for a national bill of rights, but neither of their states ultimately voted as they would have preferred. Indeed, Massachusetts was the only state which did not vote against the motion. While one may interpret this outcome to mean that Mason and Gerry were ultimately outvoted within their respective state delegations, no more may reasonably be said than that. Who among the Virginia delegation disagreed with Mason, and why? Was the vote close, or overwhelming? How many of the Massachusetts delegates agreed with Gerry? Did they abstain because they were divided, or did they come to a consensus not to record a vote? The plain account, as recorded my Madison, cannot answer any of these questions, and thus cannot provide much in the way of insight into the intentions of the Framers regarding the suitability of a bill of rights. Such an addendum was made eventually, of course, thanks in large part to Madison’s efforts as a member of the 1^st United States Congress. Evidently the representatives chosen by the American people over the winter of 1788/89 were more inclined towards the creation of a national bill of rights than were the representatives chosen by the states in 1787. But regardless of what may have been recorded of the relevant debates in Congress – a topic, most assuredly, for another day – the record of the relevant debate during the Philadelphia Convention has very little to say as to why this was the case.

This is, in essence, the central problem at the heart of Calhoun’s cited insistence that the “journals of the Convention itself” offer all the insight one should require into the intentions of the Framers as regards the Constitution. As useful as the source in question may be, and as lucky as the American people are that Madison in particular made a point of taking such detailed notes, they are nonetheless woefully inadequate to the task of relaying the “true” meaning this or that clause from their originators to the individual inquirer. The debates which they document are interesting, at times even insightful, but always, always limited in their usefulness. What can be said of Alexander Hamilton’s contributions if he participated in discussions but did not vote? Was he a Framer in the same sense as Madison or Gerry? Should his potential influence be entirely discounted? Who knows why George Mason’s fellow Virginians disagreed with him? Or why the other members of the Massachusetts delegation disagreed with Gerry? In many ways, it would seem, the records raise more questions than they answer.

Even if one discounts the outcomes of the individual debates and focuses solely on the fact that a final draft was approved and signed by the delegates yet present in Philadelphia in September of 1787 – thus seeming to signify that the majority of the delegates present ultimately agreed with the end result of their collective labors – there remains a great deal left unsaid. How many appended their name to the finished document because they actually thought it was perfect? How many did so because they thought it was just good enough? How many would not even have gone that far, but figured at worst that if the thing proved inadequate another convention could be summoned to make such changes as practical experience proved necessary? Benjamin Franklin (1706-1790), speaking on the final day of the Convention, offered a rather ambivalent view as to the value of the document which he had just helped to draft. “I confess,” he said, “That there are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them [...] I doubt too whether any other Convention we can obtain, may be able to make a better Constitution.” But while this may have accurately summed up the general feeling harbored by most of the delegates then present in Philadelphia, it offers little in the way of insight into the opinions of the individual Framers themselves. All that may be said for certain, evidently, is that while the men who drafted the Constitution indeed had a great deal to say as to the purpose of this or that section or clause of the same, all that they ever seemed to agree on as a whole was that five months spent at the height of summer in Philadelphia was long enough, and that the document which resulted was good enough. To claim any more than that would be to indulge in speculation.