Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

In 1830, at a dinner on the anniversary of Jefferson’s birthday, an exchange of toasts occurred between President Andrew Jackson and Vice-President John Calhoun. Jackson’s challenge, “Our Federal Union—it must be preserved!” was returned with another from Calhoun, “The Union—next to our liberty, the most dear.” The rhetorical volleys crystallized the fundamentally different views of the combatants during the later secession crisis, not only on the nature of the Union, but on the very values each thought paramount.

The triumvirate of interposition (the right of a state immediately to interpose its authority between its people and unconstitutional action of the general government), nullification (the process of voiding such unconstitutional action of the general government), and secession (the state’s “nuclear option” of leaving the Union) were not new. The Virginia and Kentucky Resolves of 1798, authored by Madison and Jefferson, respectively, declared that usurpations of power by Congress, as occurred in the Sedition Act, could be met by means of redress each state determined necessary. For Virginia, that included interposition of state authority. Unlike future flare-ups, this controversy was not directly traceable to economic burdens, but to a clash over individual rights of speech and immigration.

The Hartford Convention of New England states in 1814 was precipitated by the real economic costs from the Embargo Acts of the second Jefferson term and from the British blockades during the War of 1812. The radical faction led by Federalist Party dead-enders supported the drafting of a new Constitution, with specific protections for New England commercial interests. If that project was not agreeable to the other states, there would be secession and a separate peace. The moderate majority in the Convention rejected that approach—at least for the time being. They proposed constitutional amendments to protect New England commerce and interposition to federal authority, as had Virginia earlier. The final article was the call for another convention if these proposals were not favorably received, with the veiled threat of reviving secession.

But the most immediate antecedent of the debates over the Union in 1860 was the “Tariff Crisis” of the 1820s and 1830s, which provided the stage for the oratorical clashes of Senatorial giants Daniel Webster of Massachusetts, Henry Clay of Kentucky, and John C. Calhoun of South Carolina.  Due to the vast expanse of the United States, Americans and immigrants could readily gain a livelihood by squatting on cheap Western land. This produced a shortage of workers and increased the cost of labor. To protect the profits of Northern manufacturers from competition by cheaper European labor, a series of tariff laws was enacted. Those laws, along with other economic circumstances, hurt the South by depressing the price the planters received for their cotton while also increasing the cost of needed finished goods. The “40-bale theory” asserted that the 1828 “Tariff of Abominations” artificially transferred into the pockets of Northern manufacturers the value of 40 out of every 100 bales of cotton produced by Southern planters. This tariff, and its successor in 1832, sharply exacerbated the growing sectional divide between North and South and led the British statesman and free-trader William Huskisson to predict that the tariff, if not lowered, would “expedite an event inevitable, I think, at no distant period—the separation of the Southern States.”

Calhoun was the intellectual force behind the movement to protect Southern rights and liberty. He was not an eager secessionist and preferred nullification, for which he constructed an elaborate constitutional framework. Because he was vice-president of the United States at the time, his foundational efforts were presented anonymously, as with the Exposition of 1828, or by stand-ins, such as Senator Robert Hayne speaking Calhoun’s words during the Hayne-Webster debates in the Senate while the author himself was watching as presiding officer of that chamber.

Calhoun was devoted to protecting minority rights through his theory of “concurrent majorities,” which held that a law passed by the general government that was directed at, or lay particularly hard on, a particular state or region was not consistent with the principles of the Union unless it was also supported by those burdened by it. The people of that state, acting in convention, could vote to nullify that law. Since such action called into question the basic constitutional arrangement, it could not be undertaken by a mere state legislature, but had to come from that most direct expression of popular sovereignty, the people’s convention. But a single state could not bind the entire Union. Therefore, if a state convention voted to nullify, Congress could call a federal convention under Article V of the Constitution. That convention would submit the nullification resolution to the states. If ¾ of them agreed, the federal law was void. If the requisite number of states did not agree with the nullification by the original state, that state would have to yield its objection or secede.

Much of Calhoun’s thinking is reflected in Jefferson Davis’s speech, although Davis tries to draw a sharp distinction between nullification and secession. Davis, too, was a reluctant secessionist who counseled against rash action. As did Calhoun, Davis relies on the premise that the Union was the result of a compact among the people of the several states. But he views nullification as an action within the Union to preserve the Union, whereas secession is the ultimate act of the people of a state to undo in convention what the people of that state did in convention nearly 75 years earlier when they approved the Constitution. To Calhoun, secession is the final step the people might take after nullification failed to protect their rights. To Davis, nullification is an unjustifiable challenge to the binding obligation owed to the constitutional order to which the people still profess allegiance and whose benefits they still enjoy. Secession is the unrestricted right to leave, for whatever reason the people choose, but also as a consequence requires that state to forego any further benefit of union.

There are a few other notable points about the speech. For many Southerners, their cause was a “Second American War for Independence,” triggered by similar economic pressures, violations of ancient liberties and the inherited constitutional order, and oppressive actions intended to make them submit. Like the Revolutionary War polemicists, Davis speaks of the ancient rights bequeathed to them by their fathers (an allusion to the institution of slavery) and assaulted by the Union. He justifies separation by likening the North to George III (“he endeavored to do just what the North has been endeavoring of late to do–to stir up insurrection among our slaves”). He directly invokes the history of the Revolutionary War to warn the North against acts of force:  “[We] will invoke the God of our fathers, who delivered them from the power of the [British] lion, to protect us from the ravages of the bear.” It was 1776 again, four-score-and-five years later.

A famous Confederate marching song captures the Southern grievances that underlie Calhoun’s philosophy and Davis’s speech:

 We are a band of brothers

         And native to the soil,

Fighting for our liberty,

With treasure, blood, and toil;

         And when our rights were threatened,

                  The cry rose near and far–

         “Hurrah for the Bonnie Blue Flag

                  That bears a single star!”

         As long as the Union

                  Was faithful to her trust,

         Like friends and like brethren

                  Kind were we, and just;

         But now, when Northern treachery

                  Attempts our rights to mar,

         We hoist on high the Bonnie Blue Flag

                  That bears a single star.

May 20, 2013 – Essay #66

Read the Farewell Address to the Senate by Jefferson Davis here:

 An expert on constitutional law, Prof. 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. Read more from Professor Knipprath at:

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