The first, and, in reference to the subject of this communication, the most important, is, that there is no direct and immediate connection between the individual citizens of a State and the General Government. The relation between them is through the State. The Union is a union of States as communities, and not a union of individuals. As members of a State, her citizens were originally subject to no control but that of the State, and could be subject to no other, except by the act of the State itself. The Constitution was, accordingly, submitted to the States for their separate ratification; and it was only by the ratification of the State that its citizens became subject to the control of the General Government. The ratification of any other, or all the other States, without its own, could create no connection between them and the General Government, nor impose on them the slightest obligation. Without the ratification of their own State, they would stand in the same relation to the General Government as do the citizens or subjects of any foreign state; and we find the citizens of North Carolina and Rhode Island actually bearing that relation to the Government for some time after it went into operation; these States having, in the first instance, declined to ratify. Nor had the act of any individual the least influence in subjecting him to the control of the General Government, except as it might influence the ratification of the Constitution by his own State. Whether subject to its control or not, depended wholly on the act of the State. His dissent had not the least weight against the assent of the State, nor his assent against its dissent. It follows, as a necessary consequence, that the act of ratification bound the State as a community, as is expressly declared in the article of the Constitution above quoted, and not the citizens of the State as individuals; the latter being bound through their State, and in consequence of the ratification of the former. Another, and a highly important consequence, as it regards the subject under investigation, follows with equal certainty; that, on a question whether a particular power exercised by the General Government be granted by the Constitution, it belongs to the State as a member of the Union, in her sovereign capacity in convention, to determine definitively, as far as her citizens are concerned, the extent of the obligation which she contracted; and if, in her opinion, the act exercising the power be unconstitutional, to declare it null and void, which declaration would be obligatory on her citizens. In coming to this conclusion, it may be proper to remark, to prevent misrepresentation, that I do not claim for a State the right to abrogate an act of the General Government. It is the Constitution that annuls an unconstitutional act. Such an act is of itself void and of no effect. What I claim is, the right of the State, as far as its citizens are concerned, to declare the extent of the obligation, and that such declaration is binding on thema right, when limited to its citizens, flowing directly from the relation of the State to the General Government on the one side, and its citizens on the other, as already explained, and resting on the most plain and solid reasons .
I have now, I trust, conclusively shown that a State has a right, in her sovereign capacity, in convention, to declare an unconstitutional act of Congress to be null and void, and that such declarations would be obligatory on her citizens,as highly so as the Constitution itself,and conclusive against the General Government, which would have no right to enforce its construction of its powers against that of the State.
I next propose to consider the practical effect of the exercise of this high and important rightwhich, as the great conservative principle of our system, is known under the various names of nullification, interposition, and State vetoin reference to its operation viewed under different aspects: nullification,as declaring null an unconstitutional act of the General Government, as far as the State is concerned; interposition,as throwing the shield of protection between the citizens of a State and the encroachments of the Government; and veto,as arresting or inhibiting its unauthorized acts within the limits of the State .
I have already shown that the declaration of nullification would be obligatory on the citizens of the State;as much so, in fact, as its declaration ratifying the Constitution, resting, as it does, on the same basis. It would to them be the highest possible evidence that the power contested was not granted, and, of course, that the act of the General Government was unconstitutional. They would be bound, in all the relations of life, private and political, to respect and obey it; and, when called upon as jurymen, to render their verdict accordingly,or as judges, to pronounce judgment in conformity with it. The right of jury trial is secured by the Constitution (thanks to the jealous spirit of liberty, doubly secured and fortified); and, with this inestimable rightinestimable, not only as an essential portion of the judicial tribunals of the country, but infinitely more so, considered as a popular, and still more, a local representation, in that department of the Government which, without it, would be the farthest removed from the control of the people, and a fit instrument to sap the foundation of the systemwith, I repeat, this inestimable right, it would be impossible for the General Government, within the limits of the State, to execute, legally, the act nullified, or any other passed with a view to enforce it; while, on the other hand, the State would be able to enforce, legally and peaceably, its declaration of nullification. Sustained by its courts and juries, it would calmly and quietly, but successfully, meet every effort of the General Government to enforce its claim of power. The result would be inevitable. Before the judicial tribunals of the country, the State must prevail, unless, indeed, jury trial could be eluded by the refinement of the Court, or by some other device; which, however, guarded as it is by the ramparts of the Constitution, would, I hold, be impossible. The attempt to elude, should it be made, would itself be unconstitutional; and, in turn, would be annulled by the sovereign voice of the State. Nor would the right of appeal to the Supreme Court, under the judiciary act, avail the General Government. If taken, it would but end in a new trial, and that in another verdict against the Government; but whether it may be taken, would be optional with the State. The Court itself has decided that a copy of the record is requisite to review a judgment of a State court, and, if necessary, the State would take the precaution to prevent, by proper enactments, any means of obtaining a copy. But if obtained, what would it avail against the execution of the penal enactments of the State, intended to enforce the declaration of nullification? The judgment of the State court would be pronounced and executed before the possibility of a reversal,and executed, too, without responsibility incurred by any one.
Beaten before the courts, the General Government would be compelled to abandon its unconstitutional pretensions, or resort to force; a resort, the difficulty (I was about to say, the impossibility) of which would very soon fully manifest itself, should folly or madness ever make the attempt .
First, they are wholly dissimilar in their nature. One has reference to the parties themselves, and the other to their agents. Secession is a withdrawal from the Union; a separation from partners, and, as far as depends on the member withdrawing, a dissolution of the partnership. It presupposes an association; a union of several States or individuals for a common object. Wherever these exist, secession may; and where they do not, it cannot. Nullification, on the contrary, presupposes the relation of principal and agent: the one granting a power to be executed,the other, appointed by him with authority to execute it; and is simply a declaration on the part of the principal, made in due form, that an act of the agent transcending his power is null and void. It is a right belonging exclusively to the relation between principal and agent, to be found whereever it exists, and in all its forms, between several, or an association of principals, and their joint agents, as well as between a single principal and his agent.
The difference in their object is no less striking than in their nature. The object of secession is to free the withdrawing member from the obligation of the association or union, and is applicable to cases where the object of the association or union has failed, either by an abuse of power on the part of its members, or other causes. Its direct and immediate object, as it concerns the withdrawing member, is the dissolution of the association or union, as far as it is concerned. On the contrary, the object of nullification is to confine the agent within the limits of his powers, by arresting his acts transcending them, not with the view of destroying the delegated or trust power, but to preserve it, by compelling the agent to fulfil the object for which the agency or trust was created; and is applicable only to cases where the trust or delegated powers are transcended on the part of the agent. Without the power of secession, an association or union, formed for the common good of all the members, might prove ruinous to some, by the abuse of power on the part of the others; and without nullification the agent might, under color of construction, assume a power never intended to be delegated, or to convert those delegated to objects never intended to be comprehended in the trust, to the ruin of the principal, or, in case of a joint agency, to the ruin of some of the principals. Each has, thus, its appropriate object, but objects in their nature very dissimilar; so much so, that, in case of an association or union, where the powers are delegated to be executed by an agent, the abuse of power, on the part of the agent, to the injury of one or more of the members, would not justify secession on their part. The rightful remedy in that case would be nullification. There would be neither right nor pretext to secede: not right, because secession is applicable only to the acts of the members of the association or union, and not to the act of the agent; nor pretext, because there is another, and equally efficient remedy, short of the dissolution of the association or union, which can only be justified by necessity. Nullification may, indeed, be succeeded by secession. In the case stated, should the other members undertake to grant the power nullified, and should the nature of the power be such as to defeat the object of the association or union, at least as far as the member nullifying is concerned, it would then become an abuse of power on the part of the principals, and thus present a case where secession would apply; but in no other could it be justified, except it be for a failure of the association or union to effect the object for which it was created, independent of any abuse of power .
There are many who acknowledge the right of a State to secede, but deny its right to nullify; and yet, it seems impossible to admit the one without admitting the other. They both presuppose the same structure of the Government,that it is a Union of the States, as forming political communities,the same right on the part of the States, as members of the Union, to determine for their citizens the extent of the powers delegated and those reserved,and, of course, to decide whether the Constitution has or has not been violated.
HOW AN EQUILIBRIUM OF THE SYSTEM MAY BE MAINTAINED.
The General Government has the right, in the first instance, of construing its own powers, which, if final and conclusive, as is supposed by many, would have placed the reserved powers at the mercy of the delegated, and thus destroy the equilibrium of the system. Against this, a State has the right of nullification. This right, on the part of the State, if not counterpoised, might tend too strongly to weaken the General Government and derange the system. To correct this, the amending or repairing power is strengthened. The former cannot be made too strong if the latter be proportionably so. The increase of the latter is, in effect, the decrease of the former. Give to a majority of the States the right of amendment, and the arresting power, an the part of the State, would, in fact, be annulled. The amending power and the powers of the Government would, in that case, be, in reality, in the same hands. The same majority that controlled the one would the other,and the power arrested, as not granted, would be immediately restored in the shape of a grant. This modification of the right of self-government, on the part of the States is, in fact, the pivot of a system. By shifting its position as the preponderance is on the one side or the other, or, to drop the simile, by increasing or diminishing the energy of the repairing power, effected by diminishing or increasing the number of States necessary to amend the Constitution, the equilibrium between the reserved and the delegated rights may be preserved or destroyed at pleasure .
The right of a State originally to complete self-government is a fundamental principle in our system, in virtue of which the grant of power required the consent of all the States, while to withhold power the dissent of a single State was sufficient. It is true, that this original and absolute power of self-government has been modified by the Constitution, as already stated, so that three-fourths of the States may now grant power; and, consequently, it requires more than one-fourth to withhold. The boundary between the reserved and the delegated powers marks the limits of the Union. The States are united to the extent of the latter, and separated beyond that limit. It is then clear that it was not intended that the States should be more united than the will of one-fourth of them, or rather, one more than a fourth, would permit. It is worthy of remark, that it was proposed in the Convention to increase the confederative power, as it may be called, by vesting two-thirds of the States with the right of amendment, so as to require more than a third, instead of a fourth, to withhold power. The proposition was rejected, and three-fourths unanimously adopted. It is, then, more hostile to the nature and genius of our system to assume powers not delegated, than to resume those that are; and less hostile that a State, sustained by one-fourth of her co-States, should prevent the exercise of power really intended to be granted, than that the General Government should assume the exercise of powers not intended to be delegated. In the latter case, the usurpation of power would be against the fundamental principle of our systemthe original right of the States to self-government; while in the former, if it be usurpation at all, it would be, if so bold an expression may be used, a usurpation in the spirit of the Constitution itselfthe spirit ordaining that the utmost extent of our Union should be limited by the will of any number of States exceeding a fourth, and that most wisely.
THE GENERAL GOVERNMENT AN INFERIOR AND NATURALLY REBELLIOUS POWER.
In a country having so great a diversity of geographical and political interest, with so vast a territory, to be filled in a short time with almost countless millionsa country of which the parts will equal empiresa union more intimate than that ordained in the Constitution, and so intimate, of course, that it might be permanently hostile to the feelings of more than a fourth of the States, instead of strengthening, would have exposed the system to certain destruction. There is a deep and profound philosophywhich he who best knows our nature will the most highly appreciatethat would make the intensity of the Union, if I may so express myself, inversely to the extent of territory and the population of a country, and the diversity of its interests, geographical and politicaland would hold in deeper dread the assumption of reserved rights by the agent appointed to execute the delegated, than the resumption of the delegated by the authority which granted the powers and ordained the agent to administer them. There appears, indeed, to be a great and prevailing principle that tends to place the delegated power in opposition to the delegatingthe created to the creating powerreaching far beyond man and his works, up to the universal source of all power. The earliest pages of Sacred History record the rebellion of the archangels against the high authority of Heaven itselfand in ancient mythology, the war of the Titans against Jupiter, which, according to its narrative, menaced the universe with destruction. This all-pervading principle is at work in our systemthe created warring against the creating power; and unless the Government be bolted and chained down with links of adamant by the hand of the States which created it, the creature will usurp the place of the creator, and universal political idolatry overspread the land.
If the views presented be correct, it follows that, on the interposition of a State in favor of the reserved rights, it would be the duty of the General Government to abandon the contested power, or to apply to the States themselves, the source of all political authority, for the power, in one of the two modes prescribed in the Constitution. If the case be a simple one, embracing a single power, and that in its nature easily adjusted, the more ready and appropriate mode would be an amendment in the ordinary form, on a proposition of two-thirds of both Houses of Congress, to be ratified by three-fourths of the States; but, on the contrary, should the derangement of the system be great, embracing many points difficult to adjust, the States ought to be convened in a general Conventionthe most august of all assembliesrepresenting the united sovereignty of the confederated States, and having power and authority to correct every error, and to repair every dilapidation or injury, whether caused by time or accident, or the conflicting movements of the bodies which compose the system. With institutions every way so fortunate, possessed of means so well calculated to prevent disorders, and so admirable to correct them when they cannot be prevented, he who would prescribe for our political disease disunion on the one side, or coercion of a State in the assertion of its rights on the other, would deserve, and will receive, the execrations of this and all future generations.