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| historicaldocuments:notes-on-nullification-madison [2019/09/15 11:25] – Oliver Wolcott | historicaldocuments:notes-on-nullification-madison [2019/09/15 12:06] – Oliver Wolcott |
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| In the nexplace, the course & scope of the reasoning requires that by the rightful authority to interpose in the cases & for the purpose referred to, was meant, not the authority of the States singly & separately, but their authority as the parties to the Constn., the authority which in fact made the Constitution; the authority which being paramount to the Constitution was paramount to the Authorities constituted by it, to the Judiciary as well as the other authorities. The resolution clearly derives the asserted right of interposition for arresting the progress of usurpations by the Federal Govt. from the fact, that its powers were limited to the grant made by the States; a grant certainly not made by a single party to the grant but by the parties to the Compact containing the grant. The mode of their interposition, in extraordinary cases, is left by the Resolution, to the parties themselves; as the mode of interposition lies with the parties to other Constitutions, __in the event of usurpations of power not remediable, under the in the forms & by the means provided by the Constitutions. If it be asked why a claim by a Single party to the Constitutional compact, to arrest a law, deemed by it a breach of the Compact, was not expressly guarded agst. the simple answer is sufficient that a pretension so novel, so anomalous & so **anarchical**, was not & could not be anticipated.__ | In the nexplace, the course & scope of the reasoning requires that by the rightful authority to interpose in the cases & for the purpose referred to, was meant, not the authority of the States singly & separately, but their authority as the parties to the Constn., the authority which in fact made the Constitution; the authority which being paramount to the Constitution was paramount to the Authorities constituted by it, to the Judiciary as well as the other authorities. The resolution clearly derives the asserted right of interposition for arresting the progress of usurpations by the Federal Govt. from the fact, that its powers were limited to the grant made by the States; a grant certainly not made by a single party to the grant but by the parties to the Compact containing the grant. The mode of their interposition, in extraordinary cases, is left by the Resolution, to the parties themselves; as the mode of interposition lies with the parties to other Constitutions, __in the event of usurpations of power not remediable, under the in the forms & by the means provided by the Constitutions. If it be asked why a claim by a Single party to the Constitutional compact, to arrest a law, deemed by it a breach of the Compact, was not expressly guarded agst. the simple answer is sufficient that a pretension so novel, so anomalous & so **anarchical**, was not & could not be anticipated.__ |
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| In the third place, the nullifying claim for a single State is palpably irreconcilable with the effect contemplated by the interposition claimed by the Resolution for the parties to the Constitution namely that of "maintaining within the respective limits of the States the authorities rights & liberties appertaining to them." Nothing can be more clear than that, these auths. &c &c of the States, __in other words, the authority & laws of the U. S. must be the same in all__; or that this can not continue to be the case, if there be a right in each to annul or suspend within itself the operation of the laws & authority of the whole U. S. <wrap hi>There cannot be different laws in different States on subjects within the compact without subverting its fundamental principles, and rendering it as abortive in practice as it would be incongruous in theory.</wrap> A concurrence & co operation of the States in favor of each, would have the effect of preserving the necessary uniformity in all which the Constitution so carefully & specifically provided for in cases where the rule might be in most danger of being violated. Thus the Citizens of every State are to enjoy reciprocally the privileges of the Citizens in every other State: Direct taxes are to be apportioned on all, according to a fixed rule: Indirect taxes are to be the same in all the States: The duties on imports are to be uniform: No preference is to be given to the ports of one State over those of another. Can it be believed, that with these provisions of the Constn. illustrating its vital principles fully in view of the Legislature of Virginia, that its members, could in the Resolution quoted, intend to countenance a right in a single State to distinguish itself from its co-States, by avoiding the burdens, or restrictions borne by them; or indirectly giving the law to them. | In the third place, the nullifying claim for a single State is palpably irreconcilable with the effect contemplated by the interposition claimed by the Resolution for the parties to the Constitution namely that of "maintaining within the respective limits of the States the authorities rights & liberties appertaining to them." Nothing can be more clear than that, these auths. &c &c of the States, __in other words, the authority & laws of the U. S. must be the same in all__; or that this can not continue to be the case, if there be a right in each to annul or suspend within itself the operation of the laws & authority of the whole U. S. <wrap hi>There cannot be different laws in different States on subjects within the compact without subverting its fundamental principles, and rendering it as abortive in practice as it would be incongruous in theory.</wrap> A concurrence & co operation of the States in favor of each, would have the effect of preserving the necessary uniformity in all which the Constitution so carefully & specifically provided for in cases where the rule might be in most danger of being violated. __Thus the Citizens of every State are to enjoy reciprocally the privileges of the Citizens in every other State: Direct taxes are to be apportioned on all, according to a fixed rule:__ Indirect taxes are to be the same in all the States: The duties on imports are to be uniform: No preference is to be given to the ports of one State over those of another. Can it be believed, that with these provisions of the Constn. illustrating its vital principles fully in view of the Legislature of Virginia, that its members, could in the Resolution quoted, intend to countenance a right in a single State to distinguish itself from its co-States, by avoiding the burdens, or restrictions borne by them; or indirectly giving the law to them. |
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| These startling consequences from the nullifying doctrine have driven its partizans to the extravagant presumption, that no State would ever be so unreasonable, unjust & impolitic as to avail itself of its right in any case not so palpably just and fair as to ensure a concurrence of the others, or at least the requisite proportion of them. | These startling consequences from the nullifying doctrine have driven its partizans to the extravagant presumption, that no State would ever be so unreasonable, unjust & impolitic as to avail itself of its right in any case not so palpably just and fair as to ensure a concurrence of the others, or at least the requisite proportion of them. |
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| Omitting the obvious remark that in such a case the law would never have been passed, or immediately repealed; and the surprize that such a defence of the nullifying right should come from S. C. in the teeth & at the time of her own example, the presumption of such a forbearance in each of the States, or such a pliability in all, among 20 or 30 Independent Sovereignties, must be regarded as a mockery by those who reflect for a moment on the human character, or consult the lessons of experience, not the experience only of other Countries & times, but that among ourselves; and not only under the former defective Confederation, but since the improved system took place of it. Examples of differences, persevering differences among the States on the constitutionality of Federal Acts, will readily occur to every one; and which would e’er this, have defaced and demolished the Union, had the nullifying claim of S. Carolina been indiscriminately exerciseable. In some of the States, the Carriage tax would have been collected, in others unpaid. In some the tariff on imports would be collected; in others openly resisted. In some, lighthouses wd. be established; in others denounced. In some States there might be war with a foreign power; in others peace and commerce. Finally, the appellate authority of the supreme Court of the U. S. would give effect to the Federal laws in some States, whilst in others, they would be rendered nullities by the State Judiciaries. In a word the nullifying claims if reduced to practice, instead of being the conservative principle of the Constitution, would necessarily, and it may be said obviously, be a deadly poison. | Omitting the obvious remark that in such a case the law would never have been passed, or immediately repealed; and the surprize that such a defence of the nullifying right should come from S. C. in the teeth & at the time of her own example, the presumption of such a forbearance in each of the States, or such a pliability in all, among 20 or 30 Independent Sovereignties, must be regarded as a mockery by those who reflect for a moment on the human character, or consult the lessons of experience, not the experience only of other Countries & times, but that among ourselves; and not only under the __former defective Confederation__, but since the improved system took place of it. Examples of differences, persevering differences among the States on the constitutionality of Federal Acts, will readily occur to every one; and which would e’er this, have __defaced and demolished the Union, had the nullifying claim of S. Carolina been indiscriminately exerciseable__. In some of the States, the Carriage tax would have been collected, in others unpaid. In some the tariff on imports would be collected; in others openly resisted. In some, lighthouses wd. be established; in others denounced. In some States there might be war with a foreign power; in others peace and commerce. Finally, the appellate authority of the supreme Court of the U. S. would give effect to the Federal laws in some States, whilst in others, they would be rendered nullities by the State Judiciaries. I<wrap hi>n a word the nullifying claims if reduced to practice, instead of being the conservative principle of the Constitution, would necessarily, and it may be said obviously, be a **deadly poison**.</wrap> |
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| Thus from the 3d. Resoln. itself, whether regard be had to the employment of the term States in the plural number, to the argumentative use of it, or to the object namely the "maintaining the authority & rights of each, which must be the same in all as in each, it is manifest that the adequate interposition to which it relates, must be not a single, but a concurrent interposition. | Thus from the 3d. Resoln. itself, whether regard be had to the employment of the term States in the plural number, to the argumentative use of it, or to the object namely the "maintaining the authority & rights of each, which must be the same in all as in each, it is manifest that the adequate interposition to which it relates, must be not a single, but a concurrent interposition. |
| Thus the Report observes "The States then being the parties to the Constl. Compact, and in their highest sovereign Capacity, it follows of necessity, that there can be no tribunal above their authy, to decide in the last resort, whether the Compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort such questions as may be of sufficient magnitude to require their interposition". | Thus the Report observes "The States then being the parties to the Constl. Compact, and in their highest sovereign Capacity, it follows of necessity, that there can be no tribunal above their authy, to decide in the last resort, whether the Compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort such questions as may be of sufficient magnitude to require their interposition". |
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| Now apart from the palpable insufficiency of an interposition by a single State, to effect the declared object of the interposition namely, to maintain authorities & rights which must be the same in all the States, it is not true that there would be no tribunal above the authority of a State, as a single party; the aggregate authority of the parties being a tribunal above it to decide in the last resort. | Now apart from the __palpable insufficiency of an interposition by a single State__, to effect the declared object of the interposition namely, to maintain authorities & rights which must be the same in all the States, it is not true that there would be no tribunal above the authority of a State, as a single party; the aggregate authority of the parties being a tribunal above it to decide in the last resort. |
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| Again, the language of the Report is, "If the deliberate exercise of dangerous powers palpably witheld by the Constitution could not justify the parties to it, in interposing even so far as to arrest the progress of the evil, & thereby preserve the Constitun. itself as well as to provide for the safety of the parties to it, there wd. be an end to all relief from usurped power"—apply here the interposing power to a single State, and it would not be true that there wd. be no relief from usurped power. A sure & adequate relief would exist in the interposition of the States, as the co-parties to the Constitution, with a power paramount to the Constn. itself. | Again, the language of the Report is, "If the deliberate exercise of dangerous powers palpably witheld by the Constitution could not justify the parties to it, in interposing even so far as to arrest the progress of the evil, & thereby preserve the Constitun. itself as well as to provide for the safety of the parties to it, there wd. be an end to all relief from usurped power"—apply here the interposing power to a single State, and it would not be true that there wd. be no relief from usurped power. A sure & adequate relief would exist in the interposition of the States, as the co-parties to the Constitution, with a power paramount to the Constn. itself. |
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| "But, (continues the Report) it is *objected that the Judicial authy. is to be regarded as the sole expositor of the Constn. in the last resort". In answering this objection the Report observes that "However true it may be that the Judicial Dept. is in all questions submitted to it by the forms of the Constn. to decide in the last resort, this resort must neessarily not be the last—in relation to the rights of the parties to the Constl. compact from which, the Judicial as well as the other Departments hold their delegated trusts. On any other hypothesis, the Delegation of Judicial power, wd. annul the authy. delegating it, and the concurrence of this Dept. with the others in usurped power, might subvert for ever and beyond the possible reach of any rightful remedy, the very Constitn which all were instituted to preserve" | "But, (continues the Report) __it is *objected that the Judicial authy. is to be regarded as the sole expositor of the Constn. in the last resort"__. In answering this objection the Report observes that "However true it may be that the Judicial Dept. is in all questions submitted to it by the forms of the Constn. to decide in the last resort, this __resort must neessarily not be the last__—in relation to the rights of the parties to the Constl. compact from which, the Judicial as well as the other Departments hold their delegated trusts. On any other hypothesis, __the Delegation of Judicial power, wd. annul the authy. delegating it, and the concurrence of this Dept. with the others in usurped power, might subvert for ever and beyond the possible reach of any rightful remedy, the very Constitn which all were instituted to preserve"__ |
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| * Here is a direct proof, that the Authority of the Supreme Court of the U. S. was understood by the Legislature of Virginia, to have been < > to an interposition of the States agst.of the Al: & Sed; laws. | * Here is a direct proof, that the Authority of the Supreme Court of the U. S. was understood by the Legislature of Virginia, to have been < > to an interposition of the States agst.of the Al: & Sed; laws. |
| X printed p. 401 | X printed p. 401 |
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| XFrom this view of the subject, those who will duly attend to tenor of the proceedings of Virga and to the circumstances of the period when they took place will concur in the fairness of disclaiming the inference from the undeniableness of a truth, that it could not be the truth meant to be asserted in the Resoln. The employment of the truth asserted, and the reasons for it, are too striking to be denied or misunderstood. | X From this view of the subject, those who will duly attend to tenor of the proceedings of Virga and to the circumstances of the period when they took place will concur in the fairness of disclaiming the inference from the undeniableness of a truth, that it could not be the truth meant to be asserted in the Resoln. The employment of the truth asserted, and the reasons for it, are too striking to be denied or misunderstood. |
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| More than this, the remark is obvious, that those who resolve the nullifying claim into the natural right to resist intolerable oppression, are precluded from inferring that to be the right meant by the Resoln., since that is as little denied, as the paramountship of the authy., creating a Constn; over an authy derived from it. | More than this, the remark is obvious, that those who resolve the nullifying claim into the natural right to resist intolerable oppression, are precluded from inferring that to be the right meant by the Resoln., since that is as little denied, as the paramountship of the authy., creating a Constn; over an authy derived from it. |
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| The true question therefore is whether there be a Constitutional right in a single state to nullify a law of the U. S. We have seen the absurdity of such a claim in its simple naked and suicidal form. Let us turn to it as modified by S. C. into a right in every State to resist within itself, the execution of a Federal law, deemed by it to be unconstitutional; and to demand a Convention of the States to decide the question of Constitutionality, the annulment of the law to continue in the mean time, and to be permanent, unless 3/4 of the states concur in over-ruling the annulment. | The true question therefore is whether there be a Constitutional right in a single state to nullify a law of the U. S. <wrap hi>We have seen the absurdity of such a claim in its simple naked and **suicidal** form.</wrap> Let us turn to it as modified by S. C. into <wrap hi>a right in every State to resist within itself, the execution of a Federal law, deemed by it to be unconstitutional; and to **demand a Convention of the States** to decide the question of Constitutionality</wrap>, the annulment of the law to continue in the mean time, and to be permanent, unless 3/4 of the states concur in over-ruling the annulment. |
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| Thus, during the temporary nullification of the law, the results wd. be the same with those proceeding from an unqualified nullification; and the result of a convention might be, that 7 out of the 24 States, might make the temporary results permanent. It follows, that any State which could obtain the concurrence of six others, might abrogate any law of the U. S. whatever, constructively and give to the Constitution any shape they please, in opposition to the construction and will of the other seventeen, each of the 17 having an equal right & authority, with each of the 7. Every feature in the Constitution, might thus be successively changed, and after a scene of unexampled confusion & distraction, what had been unanimously agreed to as a whole, would not as a whole be agreed to by a single party. The amount of this modified right of nullification is, that a single State may arrest the operation of a law of the U. S. and institute a process which is to terminate in the ascendancy of a minority over a large majority, in a Republican System, the characteristic rule of which is that the major will is the prevailing ruling will. And this newfangled theory is attempted to be fathered on Mr. Jefferson, the apostle of Republicanism, and whose own words declare that "acquiescence in the decision of the majority is the vital principle of it." See his inaugural address. | Thus, during the temporary nullification of the law, the results wd. be the same with those proceeding from an unqualified nullification; and the result of a convention might be, that 7 out of the 24 States, might make the temporary results permanent. It follows, that any State which could obtain the concurrence of six others, might abrogate any law of the U. S. whatever, constructively and give to the Constitution any shape they please, in opposition to the construction and will of the other seventeen, each of the 17 having an equal right & authority, with each of the 7. Every feature in the Constitution, might thus be successively changed, and after a scene of unexampled confusion & distraction, what had been unanimously agreed to as a whole, would not as a whole be agreed to by a single party. __The amount of this modified right of nullification is, that a single State may arrest the operation of a law of the U. S. and institute a process which is to terminate in **the ascendancy of a minority over a large majority**, in a Republican System__, the characteristic rule of which is that the major will is the prevailing ruling will. And this newfangled theory is attempted to be fathered on Mr. Jefferson, the apostle of Republicanism, and whose own words declare that "acquiescence in the decision of the majority is the vital principle of it." See his inaugural address. |
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| Well might Virga. declare as her Legislature did by a Resolution of 183 that her Resolutions of 98-99, gave no support to the nullifying doctrine of S. C. And well may the friends of Mr. J—n disclaim any sanction to it or to any Constitutional right of nullification from his opinions. His memory is fortunately rescued from such imputations, by the very Document procured from his files and so triumphantly appealed to by the nullifying partizans of every description. In this Document, the remedial right of nullification is expressly called a natural right, and consequently not a right derived from the Const. but from abuses or usurpations, releasing the parties to it from their obligation.* Here insert paper no. 3. as a note. | Well might Virga. declare as her Legislature did by a Resolution of 183 that her Resolutions of 98-99, gave no support to the nullifying doctrine of S. C. And well may the friends of Mr. J—n disclaim any sanction to it or to any Constitutional right of nullification from his opinions. His memory is fortunately rescued from such imputations, by the very Document procured from his files and so triumphantly appealed to by the nullifying partizans of every description. In this Document, the remedial right of nullification is expressly called a natural right, and consequently not a right derived from the Const. but from abuses or usurpations, releasing the parties to it from their obligation.* Here insert paper no. 3. as a note. |
| *No example of the inconsistency of party zeal can be greater, than is seen in the value allowed to Mr Jeffersons authority by the nullifying party; whilst they disregard his repeated assertions of the Federal authority, even under the articles of Confederation, to stop the Commerce of a refractory state, whilst they abhor his opinions & propositions on the subject of slavery, & overlook his declaration, that in a republick, it is a vital principle that the minority must yield to the majority--they seize on an expression of Mr. Jefferson that Nullification is the rightful remedy, as the Shiboleth of their party, & almost a sanctification of their cause. But in addition to yr. inconsistency, their zeal is guilty of the subterfuge of droping a part of the language of Mr. Jefferson, which shews his meaning to be entirely at variance with the nullifying construction. His words in the document appealed to as the infallible test of his opinions are: | *No example of the inconsistency of party zeal can be greater, than is seen in the value allowed to Mr Jeffersons authority by the nullifying party; whilst they disregard his repeated assertions of the Federal authority, even under the articles of Confederation, to stop the Commerce of a refractory state, whilst they abhor his opinions & propositions on the subject of slavery, & overlook his declaration, that in a republick, it is a vital principle that the minority must yield to the majority--they seize on an expression of Mr. Jefferson that Nullification is the rightful remedy, as the Shiboleth of their party, & almost a sanctification of their cause. But in addition to yr. inconsistency, their zeal is guilty of the subterfuge of droping a part of the language of Mr. Jefferson, which shews his meaning to be entirely at variance with the nullifying construction. His words in the document appealed to as the infallible test of his opinions are: |
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| Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression. It cannot be supposed for a moment that Mr. Jefferson would not revolt at the doctrine of South Carolina, that a single state could constituonly resist a law of the Union, whilst remaining within it, and that with the accession of a small minority of the others, overrule the will of a great majority of the whole, & constitutionly annul the law everywhere. | Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression. __It cannot be supposed for a moment that Mr. Jefferson would not revolt at the doctrine of South Carolina, that a single state could constituonly resist a law of the Union, whilst remaining within it, and that with the accession of a small minority of the others, overrule the will of a great majority of the whole, & constitutionly annul the law everywhere.__ |
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| If the right of nullification meant by him had not been thus guarded agst. a perversion of it, let him be his own interpreter in his letter to Mr. Giles in Decr 1826. in which he makes the rightful remidy of a state in an extreme case to be a separation from the Union, not a resistance to its authority while remaining in it.* The authority of Mr. Jefferson therefore, belongs not to, but is directly opposed to, the nullifying party who have so unwarrantably availed themselves of it. | If the right of nullification meant by him had not been thus guarded agst. a perversion of it, let him be his own interpreter in his letter to Mr. Giles in Decr 1826. in which he makes the rightful remidy of a state in an extreme case to be a separation from the Union, not a resistance to its authority while remaining in it.* **The authority of Mr. Jefferson therefore, belongs not to, but is directly opposed to, the nullifying party who have so unwarrantably availed themselves of it.** |
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| It is said that in several instances the authority & laws of the U. S have been successfully nullified by particular States. This may have occurred possibly in urgent cases, and in confidence that it would not be at variance with the construction of the Fedl. Govt. or in cases where, operating within the Nullifying State alone it might be connived at, as a lesser evil than a resort to force; or in cases not falling within the Fedl. jurisdiction; or finally in cases, deemed by the States, subversive of their essensial rights, and justified therefore by the natural right law of self-preservations. Be all this as it may, examples of nullification, tho’ passing off witht. any immediate disturbance of the public order, are to be deplored, as weakeng. the Com[expansion sign]on Govt. and as undermining the Union. One thing seems to be certain, that the States which have exposed themselves to the charge of nullification, have with the exception of S. C. disclaimed it as a Constitutional right, and have moreover protested agst. it as modified by the process of S. C. | It is said that in several instances the authority & laws of the U. S have been successfully nullified by particular States. This may have occurred possibly in urgent cases, and in confidence that it would not be at variance with the construction of the Fedl. Govt. or in cases where, operating within the Nullifying State alone it might be connived at, as a lesser evil than a resort to force; or in cases not falling within the Fedl. jurisdiction; or finally in cases, deemed by the States, subversive of their essensial rights, and justified therefore by the natural right law of self-preservations. Be all this as it may, examples of nullification, tho’ passing off witht. any immediate disturbance of the public order, are to be deplored, as weakeng. the Com[expansion sign]on Govt. and as __undermining the Union__. One thing seems to be certain, that the __States which have exposed themselves to the charge of nullification, have with the exception of S. C. disclaimed it as a Constitutional right__, and have moreover protested agst. it as modified by the process of S. C. |
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| The conduct of Pena. and the opinions of Judges McKean & Tilgman have been particularly dwelt on by the Nullifiers. But the final acquiescence of the State in the authy of the Fedl. Judiciary transfers the authy. to the other scale, and it is believed that the opinions of the two judges, have been superseded by those of their brethren; which have since been & at the present time, are opposed to them. | The conduct of Pena. and the opinions of Judges McKean & Tilgman have been particularly dwelt on by the Nullifiers. But the final acquiescence of the State in the authy of the Fedl. Judiciary transfers the authy. to the other scale, and it is believed that the opinions of the two judges, have been superseded by those of their brethren; which have since been & at the present time, are opposed to them. |
