Free, Independent, and Sovereign? – Guest Essayist: Will Morrisey
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In declaring their independence from the British Empire, “the Representatives of the united States of America” acted “in the Name, and by Authority of the good People of these Colonies.” The “United Colonies are, and of Right ought to be, Free and Independent States.” Plural, not singular. But also united: as one of Mr. Shakespeare’s characters says, there’s the rub. The American States are free and independent respecting Great Britain. But are they free and independent respecting one another? And if so, to what extent? “As Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and do all other Acts and Things which Independent States may of right do,” but may they do these things severally, without regard to each other, or only as a united body? What is the character of the American Union?
Notoriously, Abraham Lincoln and Jefferson Davis later would find themselves in disagreement over this matter. But in the generation between the founding and the Civil War, a slaveholding Southern democrat, and Democrat, delivered a cogent analysis of America’s constitutional Union, promising to enforce the terms of that Union as he understood them. No one doubted that he would; Andrew Jackson was not a man to be crossed.
In 1828, Congress enacted a tariff law, one so sharply resented that South Carolinians, led by John C. Calhoun, called it the “Tariff of Abominations.” Calhoun resigned from the vice presidency and entered the Senate to fight the tariff. By the early 1830s, South Carolina handed Jackson a serious constitutional crisis.
Jackson was far from an enemy of States’ rights. In his First Inaugural Address of March 1829 he had announced that “In such measures as I may be called on to pursue in regard to the rights of the separate States I hope to be animated by a proper respect for those sovereign members of our Union, taking care not to confound the power they have reserved to themselves with those they have granted to the Confederacy”—that is, the federal government. Nine months later, in his First Annual Message, he praised the Framers’ design, which consisted of a federal government with “limited and specific, not general, powers”; “it is our duty,” he continued, “to preserve for it the character intended by its framers.” “We are responsible to our country and to the glorious cause of self-government for the preservation of so great a good.” This being so, “the great mass of legislation relating to our internal affairs was intended to be left where the Federal Convention found it—in the State governments.” He warned Congress “against all encroachments upon the legitimate sphere of State sovereignty.”
Nullification of duly enacted federal laws was another matter, however. As early as the Jefferson Day Dinner in April 1830, Jackson fixed Calhoun with his formidable stare and toasted “Our Federal Union—it must be preserved.” The warning went unheeded; indeed, the nullification movement spread to other Southern states. On November 1, 1832, South Carolina solemnly nullified the tariff law, threatening to secede from the Union if the federal government moved to enforce it. South Carolina, the state legislators intoned, “will forthwith proceed to organize a separate government and to do all other acts and things which sovereign and independent states may of right do”—thus echoing the language of the Declaration of Independence without noticing its underlying principle of unalienable natural rights.
In his Fourth Annual Message of December 1832, by which time he had been duly elected to a second term in office, Jackson reported that “in one quarter of the United States opposition to the revenue laws has arisen to a height which threatens to thwart their execution, if not to endanger the integrity of the Union.” He followed this a few days later with a proclamation refuting Southern pretensions. To claim a constitutional right to nullify federal laws as unconstitutional, “coupled with the uncontrolled right to decide what laws deserve that character, is to give the power of resisting all laws; for as by the theory there is no appeal, the reasons alleged by the State, good or bad, must prevail.” But the Constitution, the supreme law of the land, provides only two appeals from allegedly unconstitutional federal laws: judicial review and constitutional amendment. If the South Carolina doctrine “had been established at an earlier day, the Union would have been dissolved in its infancy.”
Jackson then reviewed the history of the American Union as defined and refined during the Founding period. The Union, he observed, predates not only the Constitution but the Declaration of Independence. In October 1774, the First Continental Congress met in Philadelphia in response to legislation enacted by the British parliament and king. After the Boston Tea Party, Britain aimed to punish Massachusetts by curtailing citizens’ rights—suspending the right to jury trials, among other measures. Calling these the “Intolerable Acts,” the delegates set down the Articles of Association, boycotting British imports (including slaves) and suspending American exports to England. To reinforce these proposals, Congress recommended sumptuary restrictions: no “shows, plays, and other expensive diversions and entertainments,” including horse races and cock fights. These curtailments of consumption would back the restrictions on trade. Congress further proposed the formation of local committees to expose violations of these policies—effectively enforcement by shaming. In Jackson’s words, “they agreed that they would collectively form one nation for the purpose of conducting some certain domestic concern and all foreign relations.”
The Articles of Association amounted to a treaty among the colonies, not a government. Two years later, the Declaration of Independence anticipated redefining the Union on governmental lines. Describing Americans as “one People,” the Signers announced that the United States were ready “to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them.” All independent peoples are entitled to such a “station” or status because “all Men are created equal”—”endowed by their Creator with certain unalienable Rights,” among which number “Life, Liberty, and the Pursuit of Happiness.” If a group of such equal persons consent to a government that does what governments rightly do—aiming to secure those rights—then they deserve diplomatic recognition from other peoples so organized. Conversely, governments that fail to secure those rights forfeit that consent. The long list of grievances against the British king and parliament that follows provides a sort of photographic negative of justly used governmental powers. These include the power of declaring war, settling peace, domestic legislation, and government by law with an independent judiciary. The abuse of those powers by the British government rightly led to disunion; union, by implication, requires their proper use within the framework of the Laws of Nature and of Nature’s God by the consent of the people.
After vindicating their claim of independence on the battlefield (Jackson had been one of the militiamen, at the age of thirteen), the Americans further defined the terms of their Union with their first constitution, the Articles of Confederation. In Jackson’s words, the states thereby pledged to “abide by the determinations of Congress on all questions which by that Confederation should be submitted to them,” with no state entitled to “legally annul a decision of the Congress or refuse to submit in its execution,” although the Articles provided no means of enforcing this provision. Inasmuch as the 1787 Constitution formed “’a more perfect Union’ than that of the Confederation,” how could that law permit the Union to backslide beyond even the unenforceable Union enacted under the Articles?
“I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.” More, “this right to secede”—which Jackson clear-sightedly perceived as inherent in the assertion of the sovereign right to annul—“is deduced [by the nullifiers] from the nature of the Constitution, which, they say, is a compact between sovereign States who have preserved their whole sovereignty and therefore are subject to no superior.” But Jackson correctly identifies the American people as the sovereigns, not the state or federal governments, and under the Constitution the executive is charged with enforcing federal law. “The Constitution of the United States…forms a government, not a league; and whether it be formed by compact between the States or in any other manner, its character is the same.” That government “operates directly on the people individually, not upon the States,” as it had under the Articles.
“It is the acknowledged attribute of free institutions that under them the empire of reason and law is substituted for the power of the sword.” As argued in the Declaration of Independence (and earlier by John Locke and other natural-rights philosophers), it “needs not on the present occasion be denied” that “a State or any other great portion of the people, suffering under long and intolerable oppression and having tried all constitutional remedies without the hope of redress, may have a natural right, when their happiness can be no otherwise secured, and when they can do so without greater injury to others, to absolve themselves from their obligations to the Government and appeal to the last resort,” namely, the force of arms. The right to revolution under such circumstances is a right not only of Americans but “a right of mankind.” “It is not the right of the State, but of the individual, and of all the individuals in the State.” “Like any other revolutionary act,” secession “may be morally justified by the extremity of the oppression; but to call it a constitutional right is confounding the meaning of terms,” inasmuch as “a compact is an agreement or binding obligation.” If that compact “contains no sanction, it may be broken with no other consequence than moral guilt,” as a league among independent nations might be broken; “a government, on the contrary, always as a sanction, express or implied, and in our case it is both necessarily implied and expressly given” in the provision made “for punishing acts which obstruct the due administration of its laws.” The name for “an offense against sovereignty” is treason. Jackson charges that the nullifiers’ “object is disunion…. Disunion by armed force is treason,” and Jackson leaves no doubt that he will use his executive power as president of the United States to punish its perpetrators accordingly. Thus Jackson clearly defines popular sovereignty not as a principle justifying the political superiority of the States over the federal government (as nullifiers and secessionists did), nor as a principle justifying might-makes-right majority rule of a nation over the states (as Stephen Douglas would later do), but as an instrument justified only by its adherence to the standard of natural rights. The sovereign people have divided their sovereignty between the States and the general government; accordingly, States’ sovereignty and States’ rights are limited to those objects the united people did not assign to the federal government; the federal government, for its part, is limited to the powers enumerated by the Constitution and ratified by the people. “It is not for territory or state power that our Revolutionary fathers took up arms; it was for individual liberty and the right of self-government.”
In a letter to Congress in January 1833, Jackson warned that “If these measures can not be defeated and overcome by the power conferred by the Constitution on the Federal Government, the Constitution must be considered as incompetent to its own defense, the supremacy of the laws is at an end, and the rights and liberties of the citizens can no longer receive protection from the Government of the Union.” With no major source of revenue other than the tariff, the federal government itself would shrivel and collapse and the states would take over the rule of the people resident within them. Citing the Constitutional obligation of the Executive to “take care that the laws be faithfully executed,” Jackson signed the “Force Bill” on March 3, 1833, the day before his Second Inaugural Address. In the words of his most recent biographer, Bradley S. Birzer, he then “called up militias, ordered three divisions of artillery to South Carolina, gave General Winfield Scott command over Charleston Harbor, ordered the reinforcement of Charleston’s federal forts, and placed naval warships just offshore.” In the Address, he wrote that “The eye of all nations is fixed on our Republic. The event of the existing crisis will be decisive in the opinion of mankind of the practicability of our federal system of government.” Taking notice, South Carolina backed down.
By the time of his Farewell Address four years later, Jackson could assert with confidence, “Our Constitution is no longer a doubtful instrument, and at the end of nearly a half century we find that it has preserved unimpaired the liberties of the people, secured the rights of property, and that our country has improved and is flourishing beyond any former example in the history of nations.” He nonetheless warned, “We behold systematic efforts publicly made to sow the seed of discord between different parts of the United States and to place party divisions directly upon geographical distinctions; to excite the South against the North and the North against the South, and to force into controversy the most delicate and exciting topics—topics upon which it is impossible that a large portion of the Union can ever speak without strong emotion.” Jackson does not deny the wrong of slavery, only that the consequences of disunion would be worse, reintroducing the likelihood of international war to North America without liberating the slaves. Recalling the Farewell Address of his most distinguished predecessor, he asked, “Has the warning voice of Washington been forgotten, or have designs already been formed to sever the Union?”
Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.
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Thank for you the essay.
It was very interesting to read Jackson’s political theory about the Constitution and the relationships people, States, and Federal governments. I in general do not admire Jackson’s positions on a wide variety of issues. But I concede that his logic and reasoning are very compelling on this subject.
I also appreciate his insight that there were those who sought to sow discord amongst there various sections of the country. Even a cursory reading of the fire eaters, heralding mainly from South Carolina, Georgia, and Alabama wholly validates Jackson’s observations.