South Carolina Exposition and Protest, Part VIII: Love the Sinner

    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 19^th 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 19^th century, in the 20^th century, and as frequently, now, in the 21^st 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.

South Carolina Exposition and Protest, Part VII: Precisely Imprecise, contd.

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.

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.

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 19^th 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.

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

 As comfortable as both Jefferson and Calhoun appeared to be with speculation – while claiming, of course, that they were in fact adhering strictly to a set text – they also seemed to be of the same opinion as to the right of the individual states to judge of infractions upon their respective liberties. Jefferson wrote very much to this effect in his Kentucky Resolutions (1798), declaring that,

This government, created by this compact, 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.

As was evidently far from uncommon, Calhoun echoed this sentiment in his South Carolina Exposition and Protest (1828). “It would seem impossible to deny to the States the right of deciding on the infractions of their powers,” he affirmed,

And the proper remedy to be applied for their correction. The right of judging, in such cases, 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.

Once again, the ways in which these two men chose to express themselves do not precisely align. Jefferson, for his part, made a point of characterizing the United States of America as a “compact,” over which there existed no common judge and within which each individual state must exercise its own discretion. By comparison, Calhoun seemed less interested in the structure of the American republic than in the nature of the states themselves. The states must decide, “On the infractions of their powers,” he asserted, not because there existed no common judge of superior authority, but because they each remained sovereign entities. They had been sovereign before they acceded to the union of states and nothing in the concomitant process had served to reduce them to a, “Subordinate corporate condition.” But while this points to a different source of independent judgement than that which Jefferson had described, the sentiment at its core is fundamentally alike to that expressed in the cited text of the Kentucky Resolutions. Both Jefferson and Calhoun seemed to conceive of the American republic as primarily a union of states in which said states were the primary actors. The federal government, such as it was, served merely as a framework which the various states slotted themselves into for the purpose of achieving certain shared objectives. If any given state had cause to disallow federal authority in an area which it deemed to be beyond the remit of the same, that was for the state in question to decide. And if any given state believed it necessary for the preservation of its liberty to extricate itself from the federal union altogether, that was likewise a matter for its citizens to decide. The states, in this view, had created the federal government, and could accordingly take it, leave it, or dissolve it as they pleased.

In actual practice, of course, the so-called “compact theory” of American federalism tends to ignore both how the United States came into being under the Constitution and how it functions from day to day. For one thing, the federal government really isn’t an empty shell which requires the states to provide its essential motive force. Rather, it is a separate, parallel government which cooperates with, and recognizes the existence of, the various states while maintaining a fundamentally independent existence. For the purpose of political representation, it is true, the states “send” representatives to the House and the Senate, and the members of the Electoral College are chosen on a state-by-state basis. But in each of these cases, the state government themselves are kept from operating directly upon any aspect of the national authority. The states are responsible for delineating electoral districts and for conducting federal legislative elections, but it is the inhabitants of those states who do the voting. And the states are responsible for overseeing presidential elections and determining how their electors are ultimately awarded, but it is the inhabitants of those states who decide which electors are going to be allowed to cast their votes.

Prior to the passage of the 17^th Amendment (ratified April 8^th, 1913), of course, the state legislatures did directly elect Senators, and during this period it was not uncommon for state governments to directly “instruct” their Senators how and when to vote on matters of particular interest. Even so, this arrangement still represented a slight attenuation of state power within the federal sphere. Senators were chosen by the governments of their respective states, but they were not members thereof. If a state election occurred at some point during the six-year tenure of a given Senator, the result would be a Senator of one party representing a state government controlled by another party. The influence of said government upon the Senator in question – and by extension, the influence of said state within the upper house of Congress –would accordingly have been lessened. By way of comparison, the upper house of the modern-day German national legislature, the Bundesrat, is composed of actual members of the various state governments. As state elections change the makeup of the state legislatures, so the makeup of the Bundesrat changes in turn. This arrangement – in place, as of this writing, for over seventy years – represents an authentic form of federalism whereby the constituent entities within a union of sovereign states exercise direct influence over the federal authority and federal policy. This is not the cause, nor has it ever been, in the United States of America.

In fairness, the American republic under the Constitution was never really designed to be a federation in the truest sense of the word. Consider, to that end, the manner by which it originally came to be. The state legislatures did select the delegates who would go on to represent them for the duration of the Philadelphia Convention, and the ratifying conventions that eventually approved the proposed text were organized on a state-by-state basis. But the Constitution was never formally approved by the governments of the states themselves. This, as it happened, was very much by design. Knowing full well that any national government which the states could claim to have created would never be able to command them in the way that the Framers knew would be necessary if their experiment was to succeed, they made a point of essentially cutting the states out of the ratification process and appealing directly to the American people. Granted, the states were responsible for organizing the various ratifying conventions, but the people living in those states chose the delegates, and the delegates chose to approve or reject the proposed constitution. The benefit of this arrangement was that by essentially creating a constituency specifically for the purpose of ratifying the Constitution which would then dissolve itself, the resulting federal government would be free to made demands of the states without having to face threats by the same to suspend it, alter it, or ignore it on the basis that they had previously authorized its creation. Tactically speaking, this was an exceptionally shrewd maneuver on the part of the Framers, and one which essentially guaranteed the continued existence of the federal government until – unlikeliest of unlikely events – a consensus as wide-ranging as that which had approved it could once more be summoned. But what it also means is that the United States of America, as it exists under the terms of the Constitution, is not truly a compact of the states. On the contrary, the federal government, like the state governments, is an independent creation on the American people.

Even if the explanations cited above were not valid, of course – even if the Constitution had been approved directly by the states, and even if the states exerted influence directly upon the federal government – the theory of strict constructionism which Jefferson and Calhoun both seemed to favor offers at least one additional counterargument to the cited claim put forward in the Kentucky Resolutions (1798) and the South Carolina Exposition and Protest (1828). Turning to the plain text of the Constitution itself – which, again, the theory of strict constructionism demands – only two clauses can be found that speak directly to the intended relationship between the federal government and the state governments. The first, located in Article VI, reads,

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.

The second, being much favored by opponents of excessive centralization like Jefferson and Calhoun, is the whole text of the 10^th Amendment. It reads, 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.” The combined significance of these two passages would seem to be relatively straightforward, notwithstanding what has been said of either of them by the critics or supporters of this or that theory of federalism.

There are things which the federal government can do – powers which it can exercise – which the individual states cannot. These things – these powers – are the reason that the federal government exists, and within the sphere of their operation the federal government is absolutely supreme. That being said, these powers are not exhaustive in their scope. There are a great many things which the federal government does not need to do, or indeed should not be able to do, the carrying out of which are accordingly reserved to the states. In the event that the government of a given state believes that the federal government has violated its sovereign liberties, the question which needs to be answered is, in consequence, not whether the federal government has power over the state in question so much as it is whether the authority being exercised belongs to the state governments or to the federal government. The resulting procedure may not necessarily be to the liking of the state lodging the relevant complaint – culminating, as it inevitably must, in an appeal to the federal judiciary – but this is plainly what the Constitution requires. 

It may be, upon consideration, that people like Jefferson and Calhoun had a valid point. It may be that placing the power of adjudication in the hands of the federal government grants it a tremendous advantage over the various state governments in the event of a disagreement between one and the other. But so too would permitting the states to decide for themselves whether the federal government may command them or not. Absent the creation of a truly impartial mediatory body – a prospect which seems unlikely, to say the least – the choice would seem to be between two equally flawed possibilities. In point of fact, of course – paying heed to the principle which Jefferson and Calhoun each claimed to adhere to – the Constitution chooses the former. In all areas in which the federal government rather than the state government is granted authority – pursuant to Article VI – that authority is supreme. And in all cases to be heard within the original jurisdiction of the state courts – pursuant to Article III – the federal courts maintain appellate jurisdiction. What this means, in practice, is that while a state court may indeed attempt to invalidate a federal directive, the matter can be appealed to a federal District Court, and then to a federal Appeals Court, and then on to the Supreme Court, the final ruling of which represents the last word on the subject until such time as a later ruling invalidates it or the Constitution is accordingly altered. Once again, this procedure may not have been to the liking of people like Jefferson and Calhoun. Indeed, one can rest assured that it was not. But it is, regardless of the protests of those who would claim the mantle of strict constructionist, entirely in keeping with the plain text of the Constitution.

Interestingly enough, the notion that someone who claims to be a strict constructionist might actively disagree with some aspect of the Constitution actually cuts to the core of one of the few major clashes between the position put forward by Jefferson in his Kentucky Resolutions and that which was articulated by Calhoun in his South Carolina Exposition and Protest. Jefferson, as aforementioned, was not even in the United States during the length of the Philadelphia Convention, and was almost certainly too familiar with those who ultimately did attend to consider the product of their efforts in any way sacrosanct. And while he was clearly impressed enough with the Constitution, as ratified, to advocate for a strict adherence to the text thereof, he certainly wasn’t about to give a pass to such aspects as he found in practice to be more a hindrance to his conception of good government than a help. The Necessary and Proper Clause, it should come as no surprise, was most definitely one of those aspects.

To Jefferson’s thinking – in 1798, at least – the plain statement that, “Congress shall have 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, or in any Department or Officer thereof [,]” had thus far been used to justify far more than its authors had ever intended. In his mind, the words in question were, “Meant by the instrument to be subsidiary only to the execution of the limited powers [;]” that is, to be used sparingly and narrowly, rather than, “To be so construed as themselves to give unlimited powers, nor a part to be taken as to destroy the whole residue of the instrument [.]” That successive governments had effectively applied the latter interpretation was accordingly a source of consternation for Jefferson, tending as it did, “To the destruction of all limits prescribed to their powers by the Constitution [,]” His solution? For the moment, concerned as he was with the pending application of the Alien and Sedition Acts (1798), he had none to offer. At length, however, he avowed that, “The proceedings of the general government, under color of those articles, will be a fit and necessary subject for revisal and correction at a time of greater tranquillity [.]”

It may be the case that Jefferson’s intention with this pronouncement was merely to assure whomever of his supporters happened to be reading his Kentucky Resolutions that their shared objections to the rather flexible stance of the Adams Administration on the subject of implied powers would indeed be addressed by way of further popular agitation in the states once the present crisis – i.e. the Quasi-War (1798-1800) – had fully abated. More states would publish resolutions, more Democratic-Republicans societies – the local, grassroots precursors to the later Democratic-Republican Party – would be organized, and the full weight of the domestic opposition to the Adams Administration would be effectively honed and directed. Such measures, if effective in securing key electoral victories, would certainly seem to fall under the category of “correction.” But “revisal?” Behavior certainly can be “revised,” but the term is more often used in reference to written texts. And why not? Why wouldn’t Jefferson advocate for revising the text of the Constitution so as to eliminate what he considered to be its most serious flaw? The behavior of a given administration might indeed be changed – corrected, as it were – by the skillful application of public pressure, but such an outcome could hardly be considered a permanent solution. Only a revisal of the source of said administration’s power – i.e. the Constitution – could ever hope to prevent a return to the conduct which Jefferson and his cohorts found to be so objectionable. Not only that, but by adhering to the remedy offered by the Constitution itself for dissatisfaction with the text thereof, the Sage of Monticello would strengthen his reputation as a faithful strict constructionist and foreclose upon the possibility of his opponents further declaring him to be an insurrectionary or a radical.

John C. Calhoun, by comparison, came nowhere close to even hinting, in his South Carolina Exposition and Protest, that he believed the text of the Constitution warranted some manner of revision. On the contrary, it was his opinion that,

The framers of our Constitution have not exposed themselves to the imputation of such weakness. When their work is fairly examined, it will be found that they have provided, with admirable skill, the most effective remedy; and that, if it has not prevented the danger with which the system is now threatened, the fault is not theirs, but ours, in neglecting to make its proper application.

In many ways, this kind of declaration was very much in keeping with the era in which it was inscribed. A number of the Framers were already semi-legendary at the time the attended the Philadelphia Convention in 1787. Benjamin Franklin (1706-1790) had been one of the most famous men in the Anglo-American world since at least the 1760s, and George Washington (1732-1799) was already being heralded as the “Father of his Nation” and a latter-day Cincinnatus. But while colleagues like Thomas Jefferson and James Madison were familiar enough with these men on a personal level to call their motives into question when they felt it appropriate to do so, the number of American statesmen willing – or indeed even able – to cast doubt upon the efforts of the Framers was bound to decline as the years advanced. While there were still certain members of that sainted cohort alive in 1828 upon the publication of Calhoun’s Exposition and Protest  – Madison probably chief among them – the majority had since passed on by then, leaving behind reputations which would shine only brighter as the flawed individuals behind them were gradually forgotten.