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| historicaldocuments:notes-on-nullification-madison [2019/09/15 12:06] – Oliver Wolcott | historicaldocuments:notes-on-nullification-madison [2019/09/15 12:35] – Oliver Wolcott |
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| It remains however for the nullifying expositors to specify the right &. mode of interposition, which the Resolution meant to assign to the States individually. They can not say it was a natural right, to resist intolerable oppression; for that was a right not less admitted by all that the collective right of the States as parties to the Const: the non denial of which was urged as a proof that it could not be meant by the Resoln. | It remains however for the nullifying expositors to specify the right &. mode of interposition, which the Resolution meant to assign to the States individually. They can not say it was a natural right, to resist intolerable oppression; for that was a right not less admitted by all that the collective right of the States as parties to the Const: the non denial of which was urged as a proof that it could not be meant by the Resoln. |
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| They can not say that the right meant was a Constl. right to resist the Constitutional authy: for that is a contradiction in terms, as much as a legal right to resist a law. | <wrap hi>They can not say that the right meant was a Constl. right to resist the Constitutional authy: for that is a contradiction in terms, as much as a legal right to resist a law.</wrap> |
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| They can find no middle ground, between a natural and a Constitutional right, on which a right of nullifying interposition can be placed; and it is curious to observe the awkwardness of the attempt, by the most ingenious advocates (Upsher & Berrian) | **They can find no middle ground, between a natural and a Constitutional right, on which a right of nullifying interposition can be placed;** and it is curious to observe the awkwardness of the attempt, by the most ingenious advocates (Upsher & Berrian) |
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| They will not rest the claim as modified by S. C. for that that has scarce an advocate out of the State, and owes the remnant of its popularity there to the disguise under which it is now kept alive; some of the leaders of the party admitting its indefensibility in its naked shape. | They will not rest the claim as modified by S. C. for that that has scarce an advocate out of the State, and owes the remnant of its popularity there to the disguise under which it is now kept alive; some of the leaders of the party admitting its **indefensibility** in its naked shape. |
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| The result is that the Nullifiers, instead of proving that the Resoln. meant nullification, prove that it was altogether without meaning. X See printed p. 401 | <wrap hi>The result is that the Nullifiers, instead of proving that the Resoln. meant nullification, prove that it was altogether without meaning.</wrap> X See printed p. 401 |
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| It appears from this comment, that the right asserted & exercised by the Legislature, to declare an act of Congs. unconstitutional had been denied by the Defenders of the Alein & Sedition Acts; as an interference with the Judicial authority; and consequently, that the reasonings imployed by the Legislature, were called for by the doctrines and inferences drawn from that Authority, and were not an idle display of what no one denied; by the Legislature due to the occasion | It appears from this comment, that the right asserted & exercised by the Legislature, to declare an act of Congs. unconstitutional had been denied by the Defenders of the Alein & Sedition Acts; as an interference with the Judicial authority; and consequently, that the reasonings imployed by the Legislature, were called for by the doctrines and inferences drawn from that Authority, and were not an idle display of what no one denied; by the Legislature due to the occasion |
| It appears still further that the efficacious interposition contemplated by the Legislature; was a concurring and co-operating interposition of the States; not that of a single State. | It appears still further that the efficacious interposition contemplated by the Legislature; was a concurring and co-operating interposition of the States; not that of a single State. |
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| It appears that the Legislature expressly disclaimed the idea that a declaration of a State, that a law of the U. S. was unconstitutional had the effect of annuling the law. | It appears that the Legislature expressly __disclaimed__ the idea that a declaration of a State, that a law of the U. S. was unconstitutional had the effect of annuling the law. |
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| It appears that the object to be attained by the invited co-operation with Virgina, was, as expressed in the 3d. & 7th. Resol: to maintain within the several States their respective auths. rights & liberties, which could not be constitutionally different in different States, nor inconsistent with a sameness in the Authy. & laws of the U. S. in all & in each. | It appears that the object to be attained by the invited co-operation with Virgina, was, as expressed in the 3d. & 7th. Resol: to maintain within the several States their respective auths. rights & liberties, which could not be constitutionally different in different States, nor inconsistent with a sameness in the Authy. & laws of the U. S. in all & in each. |
| What the effect might have been if Virga had remained patient & silent, and still more if she had sided with S. Carolina, in favor of the Alien & Sedition acts, can be but a matter of conjecture. | What the effect might have been if Virga had remained patient & silent, and still more if she had sided with S. Carolina, in favor of the Alien & Sedition acts, can be but a matter of conjecture. |
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| What would have been thought of her if she had recommended the nullifying project of S. C. may be estimated, by the reception given to it under factitious gloss, and in the midst of the peculiar excitement of which advantage has been taken by the partizans of that anomalous conceit. | What would have been thought of her if she had recommended the nullifying project of S. C. may be estimated, by the reception given to it under __factitious gloss,__ and in the midst of the peculiar excitement of which advantage has been taken by the partizans of that anomalous conceit. |
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| It has been sufficiently shewn from the language of the Report as has been seen, that the right in the States to interpose declarations & protests, agst. unconstitutional acts of Congress, had been denied; and that the reasoning in the Resolutions, was called for by that denial, into the triumphant tone, with which it is affirmed & reiterated, that the resolutions, must have been directed agst. what no one denied, unless they were meant to assert the right of a single State to arrest and annul Acts of the federal Legislature, makes it proper, to adduce that a proof of the fact that the declaratory right was denied which if it does not silence the advocate of nullification, must render every candid ear indignant at the repetition of the untruth. | It has been sufficiently shewn from the language of the Report as has been seen, that the right in the States to interpose declarations & protests, agst. unconstitutional acts of Congress, had been denied; and that the reasoning in the Resolutions, was called for by that denial, into the triumphant tone, with which it is affirmed & reiterated, that the resolutions, must have been directed agst. what no one denied, unless they were meant to assert the right of a single State to arrest and annul Acts of the federal Legislature, makes it proper, to adduce that a proof of the fact that the declaratory right was denied which if it does not silence the advocate of nullification, must render every candid ear indignant at the repetition of the untruth. |
| Yes it may be safely admitted that every right has its remedy; as it must be admitted that the remedy under the Constitution lies where it has been marked out by the Constitution; and that no appeal can be consistently made from that remedy, by those who were and still profess to be parties to it, but the appeal to the parties themselves having an authority above the Constitution or to the laws of nature & of nature’s God. | Yes it may be safely admitted that every right has its remedy; as it must be admitted that the remedy under the Constitution lies where it has been marked out by the Constitution; and that no appeal can be consistently made from that remedy, by those who were and still profess to be parties to it, but the appeal to the parties themselves having an authority above the Constitution or to the laws of nature & of nature’s God. |
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| It is painful to be obliged to notice such a Sophism as that by which this inference, is assailed. Because an unconstitutional law is no law, it is alledged that it may be constitutionally disobeyed by all who think it unconstitutional. The fallacy is so obvious that it can impose on none but the most biassed or heedless observers. It makes no distinction where the distinction is obvious, and essential, between the case of a law confessedly unconstitutional, and a case turning on a doubt & a divided opinion as to the meaning of the Constitution; on a question, not whether the Constitution ought or ought not to be obeyed; but on the question what is the Constitution. And can it be seriously & deliberately maintained that every individual or every subordinate authy—or every party to a compact, has a right to take for granted, that its construction is the infallible one, and to act upon it, agst. the construction of all others, having an equal right to expound the instrument, nay against the regular exposition of the Constituted authorities, with the tacit sanction of the Community. Such a doctrine, must be seen at once, to be subversive of all Constitutions, all laws, and all Compacts. The provision made by a Constn. for its own exposition, thro’ its own Authorities & forms, must prevail whilst the Constitution is left to itself by those who made it; or until cases arise which justify a resort to ultra constitutional interpositions. | __It is painful to be obliged to notice such a Sophism as that by which this inference, is assailed. Because an unconstitutional law is no law, it is alledged that it may be constitutionally disobeyed by all who think it unconstitutional.__ **The fallacy is so obvious that it can impose on none but the most biassed or heedless observers.** It makes no distinction where the distinction is obvious, and essential, between the case of a law confessedly unconstitutional, and a case turning on a doubt & a divided opinion as to the meaning of the Constitution; on a question, not whether the Constitution ought or ought not to be obeyed; but on the question what is the Constitution. And can it be seriously & deliberately maintained that every individual or every subordinate authy—or every party to a compact, has a right to take for granted, that its construction is the infallible one, and to act upon it, agst. the construction of all others, having an equal right to expound the instrument, nay against the regular exposition of the Constituted authorities, with the tacit sanction of the Community. Such a doctrine, must be seen at once, to be subversive of all Constitutions, all laws, and all Compacts. The provision made by a Constn. for its own exposition, thro’ its own Authorities & forms, must prevail whilst the Constitution is left to itself by those who made it; or until cases arise which justify a resort to ultra constitutional interpositions. |
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| The main pillar of Nullification is the assumption that Sovereignty is a unit, at once indivisible & unalienable; that the States therefore individually retain it as they originally held it, and consequently that no portion of it can belong to the U. S. | The main pillar of Nullification is the assumption that Sovereignty is a unit, at once indivisible & unalienable; that the States therefore individually retain it as they originally held it, and consequently that no portion of it can belong to the U. S. |
| But is it not the Constn. itself, necessarily the offspring of a Sovn. Authy? What but the highest pol: Authy. a sovereign Authy: could make such a Constn.; a Constn. wch. makes a Govt. a Govt. which makes laws; laws which operate likes the laws of all other Govts, by a penal & physical force, on the individuals subject to the laws; and finally laws declared to be the supreme law of the land; any thing in the Constn. or laws of the individual State notwithstanding. | But is it not the Constn. itself, necessarily the offspring of a Sovn. Authy? What but the highest pol: Authy. a sovereign Authy: could make such a Constn.; a Constn. wch. makes a Govt. a Govt. which makes laws; laws which operate likes the laws of all other Govts, by a penal & physical force, on the individuals subject to the laws; and finally laws declared to be the supreme law of the land; any thing in the Constn. or laws of the individual State notwithstanding. |
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| And where does the Sovy. which makes such a Constn. reside? It resides not in a Single State but in the people of each of the several States, uniting with those of the others in the express & solemn compact which forms the Constn. To the extent of that Compact or Constitution, therefore, the people of the several States must be a sovereign as they are a United people. | And where does the Sovy. which makes such a Constn. reside? __It resides not in a Single State__ but in the people of each of the several States, uniting with those of the others in the express & solemn compact which forms the Constn. To the extent of that Compact or Constitution, therefore, the people of the several States must be a sovereign as they are a **United people**. |
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| In like manner, the Constns. of the States, made by the people, as separated into States, were made by a sovereign Authy, by a Sovereignty residing in each of the States, to the extent of the objects embraced by their respective Constitutions. And if the States be thus sovereign tho’ shorne of so many of the essential attributes of Sovereignty, the U. States by virtue of the sovereign attributes with wch. they are endowed, may to that extent be sovereign, tho’ destitute of those attributes of which the States are not shorn. | In like manner, the Constns. of the States, made by the people, as separated into States, were made by a sovereign Authy, by a Sovereignty residing in each of the States, to the extent of the objects embraced by their respective Constitutions. And if the States be thus sovereign tho’ shorne of so many of the essential attributes of Sovereignty, the U. States by virtue of the sovereign attributes with wch. they are endowed, may to that extent be sovereign, tho’ destitute of those attributes of which the States are not shorn. |
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| * Add, as a note to this passage, what is at bottom of p. 20 of paper No. 4.) Thus far, throughout a period of nearly half a Century, the new and compound System, has been successful beyond any of the forms of Govts. ancient or modern, with which it may be compared; having as yet disclosed no defects which do not admit remedies, compatible with its vital principles and characteristic features. It becomes all therefore who are friends of a Govt. based on free principles to reflect, that by denying the possibility of a System partly federal and partly consolidated, and who would convert ours into one either wholly federal or wholly consolidated, in neither of which forms have individual rights, public order, and external safety, been all duly maintained, they aim a deadly blow at the last hope of true liberty on the face of the Earth. Its enlightened votaries, must perceive the necessity of such a modification of power as will not only divide it between the whole & parts, but provide for occurring questions as well between the whole & the parts as between the parts themselves. A political system which does not contain an effective provision, for a peaceable decision of all controversies arising within itself, would be a Govt. in name only. Such a provision is obviously essential; and it is equally obvious that it cannot be either peaceable or effective by making every part an authoritative Umpire; The final appeal in such cases, must be to the authority of the whole, not to that of the parts separately & independently. This was the view taken of the subject, whilst the Constitution was under the consideration of the people (see Federalist No. ) It was this view of it which dictated the Clause declaring that the Constitution & laws of the U S. should be the supreme law of the Land, any thing in the Constn or laws of any of the States to the Contrary not with standing (see Art: ) It was the same view which specially prohibited certain powers and acts to the States, among them any laws violating the obligation of contracts, and which dictated the appellate provision in the Judicial Act passed by the first Congress under the Constitution (see Act ) And it may be confidently foretold, that notwithstanding the clouds which a patriotic jealousy or other causes, have at times thrown over the subject, it is the view which will be permanently taken of it, with a surprize hereafter that any other should ever have been contended for. | * Add, as a note to this passage, what is at bottom of p. 20 of paper No. 4.) Thus far, throughout a period of nearly half a Century, the new and compound System, has been successful beyond any of the forms of Govts. ancient or modern, with which it may be compared; having as yet disclosed no defects which do not admit remedies, compatible with its vital principles and characteristic features. It becomes all therefore who are friends of a Govt. based on free principles to reflect, that by denying the possibility of a System partly federal and partly consolidated, and who would convert ours into one either wholly federal or wholly consolidated, in neither of which forms have individual rights, public order, and external safety, been all duly maintained, they aim a deadly blow at the last hope of true liberty on the face of the Earth. Its enlightened votaries, must perceive the necessity of such a modification of power as will not only divide it between the whole & parts, but provide for occurring questions as well between the whole & the parts as between the parts themselves. A political system which does not contain an effective provision, for a peaceable decision of all controversies arising within itself, would be a Govt. in name only. Such a provision is obviously essential; and it is equally obvious that it cannot be either peaceable or effective by making every part an authoritative Umpire; The final appeal in such cases, must be to the authority of the whole, not to that of the parts separately & independently. This was the view taken of the subject, whilst the Constitution was under the consideration of the people (see Federalist No. ) It was this view of it which dictated the Clause declaring that the Constitution & laws of the U S. should be the supreme law of the Land, any thing in the Constn or laws of any of the States to the Contrary not with standing (see Art: ) It was the same view which specially prohibited certain powers and acts to the States, among them any laws violating the obligation of contracts, and which dictated the appellate provision in the Judicial Act passed by the first Congress under the Constitution (see Act ) And it may be confidently foretold, that notwithstanding the clouds which a patriotic jealousy or other causes, have at times thrown over the subject, it is the view which will be permanently taken of it, with a surprize hereafter that any other should ever have been contended for. |
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