Guest Essayist: Joerg Knipprath


On January 26 and 27, Webster returned fire. In a speech equally aroused as Hayne’s, and laced with historical references, constitutional argument, and heavy doses of sarcasm, Webster rejected Hayne’s attacks and painted a picture of an optimistic nationalism that stood in stark contrast to Hayne’s defensiveness.

Relying on only a few notes, and using his sonorous voice to full effect, Webster spoke hour after hour. It was clear that the matter had become personal for Webster, as it earlier had for Hayne. He devoted considerable energy to chastising Hayne for alleged violations of decorum in Hayne’s speech. On substance, he listed numerous votes by the East in favor of the West. He extolled the South Carolinians’ support for tariffs and internal improvements during the 1810s, using their own votes and speeches to make his point about their opportunistic reversal and baseless objections to those policies in the 1820s.

However, most of his effort was directed at defending the Union and rejecting Hayne’s vision of the country:  the South Carolina Doctrine was an illegitimate form of revolution; the Constitution’s source was the people, not the States severally; the general government was one of limited powers, but the Supremacy Clause of the Constitution made that government’s laws immune from state interference; the Constitution placed in the Supreme Court the power to patrol the lines between the general government’s specified powers and the reserved powers of the several States; the States had lost crucial incidents of sovereignty, such as making war or coining money; the Constitution was a government, not a treaty, so Hayne’s analogy to judicial incompetence to decide cases between national sovereigns was inapt. Using language later popularized through Abraham Lincoln’s Gettysburg Address, Webster declared, “It is, Sir, the people’s Constitution, the people’s government, made for the people, made by the people, and answerable to the people.” The remedy for unconstitutional action lay not with a single state, but with the people as a whole, through the legislative process, by appeal to the judiciary, or through a constitutional convention. Ultimately, in case of “intolerable oppression…the people might protect themselves, [even] without the aid of the State governments” (i.e. a right of revolution).

Reaching the oration’s climax, Webster implored,

“When my eyes shall be turned to behold for the last time the sun in heaven, may I not see him shining on the broken and dishonored fragments of a once glorious Union; on States dissevered, discordant, belligerent; on a land rent with civil feuds, or drenched, it may be, in fraternal blood! Let their last feeble and lingering glance rather behold the gorgeous ensign of the republic, now known and honored throughout the earth, still full high advanced, its arms and trophies streaming in their original lustre, not a stripe erased or polluted, nor a single star obscured, bearing for its motto, no such miserable interrogatory as ‘What is all this worth?’ nor those other words of delusion and folly, ‘Liberty first and Union afterwards’; but everywhere, spread all over in characters of living light, blazing on all its ample folds, as they float over the sea and over the land, and in every wind under the whole heavens, that other sentiment, dear to every true American heart,–Liberty and Union, now and forever, one and inseparable!”

Hayne immediately rose once more to speak at length. In his second speech, Webster had accused the South of wanting to replicate the efforts of the discredited war-time Hartford Convention. Hayne contemptuously rejected the “advice.” “[W]hen South Carolina shall resort to such a measure for the redress of her grievances, let me tell the gentleman that, of all the assemblies that have ever been convened in this country, the Hartford Convention is the very last we shall consent to take as an example; nor will it find more favor in our eyes, from being recommended by the Senator from Massachusetts. Sir, we would scorn to take advantage of difficulties created by foreign war, to wring from the federal government redress even of our grievances.”

There followed a lengthy exposition of the “South Carolina Doctrine.” Hayne examined in fine detail the founding of the country, the basis of government under the Constitution, and the nature of dual sovereignty in our federal system. Revisiting contentions made numerous times in various forums over the previous half-century, Hayne insisted that the Union is a compact among the people of the states. Both–the Union and the States–retain their sovereignty, and neither can be the judge over the other. Congress cannot be a judge in its own cause over the extent of its own powers, and the federal Supreme Court can no more assert jurisdiction to act as umpire than it can in a dispute between sovereign nations. The Constitution was established to constrain the majority. Governing powers were separated and distributed. Congress was given only limited powers. If Congress ventures beyond those powers, their actions are void. States have the power to declare when such violations have occurred and, as the 10th Amendment confirms, have never surrendered their plenary power “to interpose for arresting the progress of evil.” Appealing to the respect given to James Madison and Thomas Jefferson, Hayne used their Virginia and (revised) Kentucky Resolutions against the Alien and Sedition Acts to justify also nullification.

What about resolving inevitable conflicts? Starting with a statement by Jefferson from 1821, Hayne placed the onus on Congress to call a convention and have the disputed matter addressed by constitutional amendment. The requirement that three-fourths of states must approve such an amendment provided enough protection to disaffected minorities without holding the country hostage to every whimsical objection one state might make.

Seizing on Webster’s ringing conclusion in the second speech, Hayne needled him, “The gentleman is for marching under a banner studded all over with stars, and bearing the inscription Liberty and Union. I had thought, sir, the gentleman would have borne a standard, displaying in its ample folds a brilliant sun, extending its golden rays from the centre to the extremities, in the brightness of whose beams, the ‘little stars hide their diminished heads.’ Ours, Sir, is the banner of the Constitution, the twenty-four stars are there in all their undiminished lustre, on it is inscribed, Liberty–the Constitution–Union….”

Webster then offered a brief rebuttal on the salient issue of the nature of the Union. He presented a summary of his earlier argument, but added that even Hayne’s compact theory would not permit unilateral action by one state. Instead, it would require decision by all, as under the Articles of Confederation. The debate had laid bare the fundamental contrast between the two conceptions of the Union, and its spectacle had driven the issue into the public consciousness.

Webster’s words are better known today than Hayne’s. Even had the armed conflict of the following generation over slavery and the nature of the Union turned out differently, that might yet be the case. Hayne argued on behalf of an aristocratic social and classic republican political order tied to the soil and local custom. That order could not survive the material dynamic of the Industrial Revolution, the economic rise of the capitalist class, and the influx of immigrants who lacked an intellectual tether to the Founding and who had loyalties to the nation to which they were drawn rather than to the particular states in which they happened to settle. Nationalism was on the rise, and it was Webster who extolled its benefits. Webster firmly tied Union to the Constitution itself, and evoked the imagery of its presumed majesty. Opposition to that Union by a single state was cleverly and clearly branded treason by Webster’s stark portrait of how nullification would inevitably result in armed conflict.

That said, Hayne’s exposition of states’ rights–or, more starkly, each state’s rights–may have lost its contest for constitutional dominance, but it has not been defeated as an idea. Even now, cities and states seek to limit traditional federal power over immigration and other aspects of national sovereignty by interposition and nullification. A pertinent example is California’s “sanctuary state” policy to frustrate federal enforcement of immigration laws. As the country’s sharp division into inflexible factions and identity groups continues to harden, the republicanism that rests on compromise and accommodation becomes increasingly difficult to sustain on a national scale. The ever-growing reach of the federal government and its metamorphosis into the “consolidated government” that Hayne feared and Webster dismissed is likely to renew interest in theories that–while they preserve union–might provide a political safety valve short of armed action against federal laws that counter strong local customs and deeply-held beliefs of a portion of the Union. The speculations of Hayne–and more fundamentally, John C. Calhoun, the great intellectual exponent of this constitutional vision–may well rise again to prominence. One doubts, however, that in an age when 140-letter “tweets,” sensationalist press releases, and “hashtags” count as substantive political discourse, we will soon see the likes of the Hayne-Webster debate.


Webster-Hayne Speeches:

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:


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