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To Edward Everett
Augst. 28 1830.
I have duly recd. your letter in wch. you refer to the “nullifying doctrine,” advocated as a constitutional right by some of our distinguished fellow citizens; and to the proceedings of the Virga. Legislature in 98 & 99, as appealed to in behalf of that doctrine; and you express a wish for my ideas on those subjects.
I am aware of the delicacy of the task in some respects; and the difficulty in every respect of doing full justice to it. But having in more than one instance complied with a like request from other friendly quarters, I do not decline a sketch of the views which I have been led to take of the doctrine in question, as well as some others connected with them; and of the grounds from which it appears that the proceedings of Virginia have been misconceived by those who have appealed to them. In order to understand the true character of the Constitution of the U. S. the error, not uncommon, must be avoided, of viewing it through the medium either of a consolidated Government or of a confederated Govt. whilst it is neither the one nor the other, but a mixture of both. And having in no model the similitudes & analogies applicable to other systems of Govt it must more than any other be its own interpreter, according to its text & the facts of the case.
From these it will be seen that the characteristic peculiarities of the Constitution are 1. The mode of its formation, 2. The division of the supreme powers of Govt between the States in their united capacity and the States in their individual capacities.
1. It was formed, not by the Governments of the component States, as the Federal Govt. for which it was substituted was formed; nor was it formed by a majority of the people of the U. S. as a single community in the manner of a consolidated Government.
It was formed by the States — that is by the people in each of the States, acting in their highest sovereign capacity; and formed, consequently by the same authority which formed the State Constitutions.
Being thus derived from the same source as the Constitutions of the States, it has within each State, the same authority as the Constitution of the State; and is as much a Constitution, in the strict sense of the term, within its prescribed sphere, as the Constitutions of the States are within their respective spheres; but with this obvious & essential difference, that being a compact among the States in their highest sovereign capacity, and constituting the people thereof one people for certain purposes, it cannot be altered or annulled at the will of the States individually, as the Constitution of a State may be at its individual will.
2. And that it divides the supreme powers of Govt. between the Govt. of the United States, & the Govts. of the individual States, is stamped on the face of the instrument; the powers of war and of taxation, of commerce & of treaties, and other enumerated powers vested in the Govt. of the U. S. being of as high & sovereign a character as any of the powers reserved to the State Govts.
Nor is the Govt. of the U. S. created by the Constitution, less a Govt. in the strict sense of the term, within the sphere of its powers, than the Govts. created by the constitutions of the States are within their several spheres. It is like them organized into Legislative, Executive, & Judiciary Departments. It operates like them, directly on persons & things. And, like them, it has at command a physical force for executing the powers committed to it. The concurrent operation in certain cases is one of the features marking the peculiarity of the system.
Between these different constitutional Govts. — the one operating in all the States, the others operating separately in each, with the aggregate powers of Govt. divided between them, it could not escape attention that controversies would arise concerning the boundaries of jurisdiction; and that some provision ought to be made for such occurrences. A political system that does not provide for a peaceable & authoritative termination of occurring controversies, would not be more than the shadow of a Govt.; the object & end of a real Govt. being the substitution of law & order for uncertainty confusion, and violence.
That to have left a final decision in such cases to each of the States, then 13 & already 24, could not fail to make the Constn. & laws of the U. S. different in different States was obvious; and not less obvious, that this diversity of independent decisions, must altogether distract the Govt. of the Union & speedily put an end to the Union itself. A uniform authority of the laws, is in itself a vital principle. Some of the most important laws could not be partially executed. They must be executed in all the States or they could be duly executed in none. An impost or an excise, for example, if not in force in some States, would be defeated in others. It is well known that this was among the lessons of experience wch. had a primary influence in bringing about the existing Constitution. A loss of its general authy. would moreover revive the exasperating questions between the States holding ports for foreign commerce and the adjoining States without them, to which are now added all the inland States necessarily carrying on their foreign commerce through other States.
To have made the decisions under the authority of the individual States, co-ordinate in all cases with decisions under the authority of the U. S. would unavoidably produce collisions incompatible with the peace of society, & with that regular & efficient administration which is the essence of free Govts. Scenes could not be avoided in which a ministerial officer of the U. S. and the correspondent officer of an individual State, would have rencounters in executing conflicting decrees, the result of which would depend on the comparative force of the local posse attending them, and that a casualty depending on the political opinions and party feelings in different States.
To have referred every clashing decision under the two authorities for a final decision to the States as parties to the Constitution, would be attended with delays, with inconveniences, and with expenses amounting to a prohibition of the expedient, not to mention its tendency to impair the salutary veneration for a system requiring such frequent interpositions, nor the delicate questions which might present themselves as to the form of stating the appeal, and as to the Quorum for deciding it.
To have trusted to negociation, for adjusting disputes between the Govt. of the U. S. and the State Govts. as between independent & separate sovereignties, would have lost sight altogether of a Constitution & Govt. for the Union; and opened a direct road from a failure of that resort, to the ultima ratio between nations wholly independent of and alien to each other. If the idea had its origin in the process of adjustment between separate branches of the same Govt. the analogy entirely fails. In the case of disputes between independent parts of the same Govt. neither part being able to consummate its will, nor the Gov. to proceed without a concurrence of the parts, necessity brings about an accommodation. In disputes between a State Govt. and the Govt. of the U. States the case is practically as well as theoretically different; each party possessing all the Departments of an organized Govt. Legisl. Ex. & Judiciary; and having each a physical force to support its pretensions. Although the issue of negociation might sometimes avoid this extremity, how often would it happen among so many States, that an unaccommodating spirit in some would render that resource unavailing? A contrary supposition would not accord with a knowledge of human nature or the evidence of our own political history.
The Constitution, not relying on any of the preceding modifications for its safe & successful operation, has expressly declared on the one hand; 1. “That the Constitution, and the laws made in pursuance thereof, and all Treaties made under the authority of the U. S. shall be the supreme law of the land; 2. That the judges of every State shall be bound thereby, anything in the Constn or laws of any State to the contrary notwithstanding; 3. That the judicial power of the U. S. shall extend to all cases in law & equity arising under the Constitution, the laws of the U. S. and Treaties made under their authority &c.”
On the other hand, as a security of the rights & powers of the States in their individual capacities, agst. an undue preponderance of the powers granted to the Government over them in their united capacity, the Constitution has relied on, 1. The responsibility of the Senators and Representatives in the Legislature of the U. S. to the Legislatures & people of the States. 2. The responsibility of the President to the people of the U. States; & 3. The liability of the Ex. and Judiciary functionaries of the U. S. to impeachment by the Representatives of the people of the States, in one branch of the Legislature of the U. S. and trial by the Representatives of the States, in the other branch; the State functionaries, Legislative, Executive, & judiciary, being at the same time in their appointment & responsibility, altogether independent of the agency or authority of the U. States.
How far this structure of the Govt. of the U. S. be adequate & safe for its objects, time alone can absolutely determine. Experience seems to have shown that whatever may grow out of future stages of our national career, there is as yet a sufficient controul in the popular will over the Executive & Legislative Departments of the Govt. When the Alien & Sedition laws were passed in contravention to the opinions and feelings of the community, the first elections that ensued put an end to them. And whatever may have been the character of other acts in the judgment of many of us, it is but true that they have generally accorded with the views of a majority of the States and of the people. At the present day it seems well understood that the laws which have created most dissatisfaction have had a like sanction without doors; and that whether continued varied or repealed, a like proof will be given of the sympathy & responsibility of the Representative Body to the Constituent Body. Indeed, the great complaint now is, not against the want of this sympathy and responsibility, but against the results of them in the legislative policy of the nation.
With respect to the Judicial power of the U. S. and the authority of the Supreme Court in relation to the boundary of jurisdiction between the Federal & the State Govts. I may be permitted to refer to the number of the “Federalist” for the light in which the subject was regarded by its writer, at the period when the Constitution was depending; and it is believed that the same was the prevailing view then taken of it, that the same view has continued to prevail, and that it does so at this time notwithstanding the eminent exceptions to it.
But it is perfectly consistent with the concession of this power to the Supreme Court, in cases falling within the course of its functions, to maintain that the power has not always been rightly exercised. To say nothing of the period, happily a short one, when judges in their seats did not abstain from intemperate & party harangues, equally at variance with their duty and their dignity, there have been occasional decisions from the Bench which have incurred serious & extensive disapprobation. Still it would seem that, with but few exceptions, the course of the judiciary has been hitherto sustained by the predominant sense of the nation.
Those who have denied or doubted the supremacy of the judicial power of the U. S. & denounce at the same time nullifying power in a State, seem not to have sufficiently adverted to the utter inefficiency of a supremacy in a law of the land, without a supremacy in the exposition & execution of the law; nor to the destruction of all equipoise between the Federal Govt. and the State governments, if, whilst the functionaries of the Fedl. Govt. are directly or indirectly elected by and responsible to the States & the functionaries of the States are in their appointments & responsibility wholly independent of the U. S. no constitutional control of any sort belonged to the U. S. over the States. Under such an organization it is evident that it would be in the power of the States individually, to pass unauthorized laws, and to carry them into complete effect, anything in the Constn. and laws of the U. S. to the contrary notwithstanding. This would be a nullifying power in its plenary character; and whether it had its final effect, thro the Legislative Ex. or Judiciary organ of the State, would be equally fatal to the constitutional relation between the two Govts.
Should the provisions of the Constitution as here reviewed be found not to secure the Govt. & rights of the States agst. usurpations & abuses on the part of the U. S. the final resort within the purview of the Constn. lies in an amendment of the Constn. according to a process applicable by the States.
And in the event of a failure of every constitutional resort, and an accumulation of usurpations & abuses, rendering passive obedience & non-resistence a greater evil, than resistence & revolution, there can remain but one resort, the last of all, an appeal from the cancelled obligations of the constitutional compact, to original rights & the law of self-preservation. This is the ultima ratio under all Govt. whether consolidated, confederated, or a compound of both; and it cannot be doubted that a single member of the Union, in the extremity supposed, but in that only would have a right, as an extra & ultra constitutional right, to make the appeal.
This brings us to the expedient lately advanced, which claims for a single State a right to appeal agst. an exercise of power by the Govt. of the U. S. decided by the State to be unconstitutional, to the parties of the Const, compact; the decision of the State to have the effect of nullifying the act of the Govt. of the U. S. unless the decision of the State be reversed by three-fourths of the parties.
The distinguished names & high authorities which appear to have asserted and given a practical scope to this doctrine, entitle it to a respect which it might be difficult otherwise to feel for it.
If the doctrine were to be understood as requiring the three-fourths of the States to sustain, instead of that proportion to reverse, the decision of the appealing State, the decision to be without effect during the appeal, it wd. be sufficient to remark, that this extra constl. course might well give way to that marked out by the Const, which authorizes 2/3 of the States to institute and 3/4. to effectuate, an amendment of the Constn. establishing a permanent rule of the highest authy in place of an irregular precedent of construction only.
But it is understood that the nullifying doctrine imports that the decision of the State is to be presumed valid, and that it overrules the law of the U. S. unless overuled by 3/4 of the States.
Can more be necessary to demonstrate the inadmissibility of such a doctrine than that it puts it in the power of the smallest fraction over 1/4 of the U. S. — that is, of 7 States out of 24 — to give the law and even the Constn. to 17 States, each of the 17 having as parties to the Constn. an equal right with each of the 7 to expound it & to insist on the exposition. That the 7 might, in particular instances be right and the 17 wrong, is more than possible. But to establish a positive & permanent rule giving such a power to such a minority over such a majority, would overturn the first principle of free Govt. and in practice necessarily overturn the Govt. itself.
It is to be recollected that the Constitution was proposed to the people of the States as a whole, and unanimously adopted by the States as a whole, it being a part of the Constitution that not less than 3/4 of the States should be competent to make any alteration in what had been unanimously agreed to. So great is the caution on this point, that in two cases when peculiar interests were at stake, a proportion even of 3/4 is distrusted, and unanimity required to make an alteration.
When the Constitution was adopted as a whole, it is certain that there were many parts which if separately proposed, would have been promptly rejected. It is far from impossible, that every part of the Constitution might be rejected by a majority, and yet, taken together as a whole be unanimously accepted. Free constitutions will rarely if ever be formed without reciprocal concessions; without articles conditioned on & balancing each other. Is there a constitution of a single State out of the 24 that wd. bear the experiment of having its component parts submitted to the people & separately decided on?
What the fate of the Constitution of the U. S. would be if a small proportion of States could expunge parts of it particularly valued by a large majority, can have but one answer.
The difficulty is not removed by limiting the doctrine to cases of construction. How many cases of that sort, involving cardinal provisions of the Constitution, have occurred? How many now exist? How many may hereafter spring up? How many might be ingeniously created, if entitled to the privilege of a decision in the mode proposed?
Is it certain that the principle of that mode wd. not reach farther than is contemplated. If a single State can of right require 3/4 of its co-States to overrule its exposition of the Constitution, because that proportion is authorized to amend it, would the plea be less plausible that, as the Constitution was unanimously established, it ought to be unanimously expounded?
The reply to all such suggestions seems to be unavoidable and irresistible, that the Constitution is a compact, that its text is to be expounded according to the provision for expounding it, making a part of the compact, and that none of the parties can rightfully renounce the expounding provision more than any other part. When such a right accrues, as it may accrue, it must grow out of abuses of the compact releasing the sufferers from their fealty to it.
In favour of the nullifying claim for the States individually, it appears, as you observe, that the proceedings of the Legislature of Virga in 98 & 99 agst the Alien and Sedition Acts are much dwelt upon.
It may often happen, as experience proves, that erroneous constructions, not anticipated, may not be sufficiently guarded against in the language used, and it is due to the distinguished individuals who have misconceived the intention of those proceedings to suppose that the meaning of the Legislature, though well comprehended at the time, may not now be obvious to those unacquainted with the contemporary indications and impressions.
But it is believed that by keeping in view the distinction be tween the Govt of the States & the States in the sense in which they were parties to the Constn, between the rights of the parties, in their concurrent and in their individual capacities, between the several modes and objects of interposition agst the abuses of power, and especially between interpositions within the purview of the Constn & interpositions appealing from the Constn to the rights of nature paramount to all Constitutions, with these distinctions kept in view, and an attention, always of explanatory use, to the views & arguments which were combated, a confidence is felt, that the Resolutions of Virginia, as vindicated in the Report on them, will be found entitled to an exposition, showing a consistency in their parts and an inconsistency of the whole with the doctrine under consideration.
That the Legislature cd not have intended to sanction such a doctnne is to be inferred from the debates in the House of Delegates, and from the address of the two Houses to their constitutents on the subject of the resolutions. The tenor of the debates wch were ably conducted and are understood to have been revised for the press by most, if not all, of the speakers, discloses no reference whatever to a constitutional nght in an individual State to arrest by force the operation of a law of the U. S. Concert among the States for redress against the alien & sedition laws, as acts of usurped power, was a leading sentiment, and the attainment of a concert the immediate object of the course adopted by the Legislature, which was that of inviting the other States “to concur in declaring the acts to be unconstitutional, and to co-operate by the necessary & proper measures in maintaining unimpaired the authorities rights & liberties reserved to the States respectively & to the people.” That by the necessary and proper measures to be concurrently and co operatively taken, were meant measures known to the Constitution, particularly the ordinary controul of the people and Legislatures of the States over the Govt of the U S cannot be doubted, and the interposition of this controul as the event showed was equal to the occasion.
It is worthy of remark, and explanatory of the intentions of the Legislature, that the words “not law, but utterly null, void, and of no force or effect,” which had followed, in one of the Resolutions, the word “unconstitutional,” were struck out by common consent. Tho the words were in fact but synonymous with “unconstitutional,” yet to guard against a misunderstanding of this phrase as more than declaratory of opinion, the word unconstitutional alone was retained, as not liable to that danger.
The published address of the Legislature to the people their constituents affords another conclusive evidence of its views. The address warns them against the encroaching spirit of the Genl Govt, argues the unconstitutionality of the alien & sedition acts, points to other instances in which the consd limits had been overleaped, dwells upon the dangerous mode of deriving power by implications, and in general presses the necessity of watching over the consolidating tendency of the Fedl. policy. But nothing is sd. that can be understood to look to means of maintaining the rights of the States beyond the regular ones within the forms of the Constn.
If any farther lights on the subject cd. be needed, a very strong one is reflected in the answers to the Resolutions by the States which protested agst. them. The main objection to these, beyond a few general complaints agst. the inflammatory tendency of the resolutions was directed agst. the assumed authy. of a State Legisle. to declare a law of the U. S. unconstitutional, which they pronounced an unwarrantable interference with the exclusive jurisdiction of the Supreme Ct. of the U. S. Had the resolns. been regarded as avowing & maintaining a right in an indivl. State, to arrest by force the execution of a law of the U. S. it must be presumed that it wd. have been a conspicuous object of their denunciation.