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 19th 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.
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