Calhoun and Constitutionalism

Union and liberty are not two terms most people associate with John C. Calhoun, a figure often linked exclusively with secession and slavery. But a reading of Liberty Fund’s 1992 Union and Liberty, a single-volume collection of Calhoun’s writings and speeches edited by the late Ross M. Lence, reveals a mind most intently focused on investigating and assessing the origins and tendencies of constitutional government. The only major American statesman to write a theoretical treatise on government and constitutionalism, Calhoun offered a unique and persuasive explanation of consensus-based constitutions as the only way in which liberty could be combined with the governmental power necessary to protect society, allowing for both strong union and liberty.

As Lence notes in the Foreword, Calhoun’s support of slavery, the legacy of the Civil War, and the 20th century’s malignant uses of “states’ rights” have “distracted historians and political scientists from serious consideration of his ideas.” This is all the more true today. Reading Union and Liberty, however, should show that this avoidance of Calhoun’s theory is a mistake.

While most of his best writings are free of such topics, Calhoun’s odious views on race and slavery make reading a few of his writings—like his simultaneously brilliant and foul “Speech on the Oregon Bill”—an exercise akin to panning for gold: there is sometimes some ugly mud to root through, but there are also valuable nuggets of insight to be found. It has been a perennial question as to whether one can meaningfully separate Calhoun’s theory from his practical commitment to slavery. In my book, John C. Calhoun’s Theory of Republicanism, I offer an extensive argument that one can and should separate the two. The result is a powerful and persuasive assessment of constitutional government which—though it was developed through his extensive and direct engagement with mid-19th-century issues—has nothing to do with slavery or secession at its core.

The subtitle of Lence’s collection, The Political Philosophy of John C. Calhoun, offers insight into the editor’s purpose: the selections are designed to present Calhoun to the reader as a political thinker. Lence included the Disquisition on Government and Discourse on the Constitution in their entirety. These two works, written at the end of Calhoun’s life, present his ideas in a systematic way and are the best introduction to his thought. Also included unabridged are two early speeches from his time in the House of Representatives, three of his four vital writings during the nullification crisis, the notorious “Speech on the Reception of Abolition Petitions,” and six more writings which cover the pressing political questions of the second half of his career ranging from the national bank to the status of slavery in the federal territories.

While there are a few unfortunate omissions (the most important being the “Letter to James Hamilton” which is Calhoun’s most theoretically robust defense of his doctrine of nullification), Lence is to be credited for having assembled a core set of documents which allow a reader looking to go beyond simple caricatures of Calhoun to understand not only the nuances of the nullification doctrine, but also the depth and subtlety of Calhoun’s broad constitutional theory.

Concurrent Constitutionalism

This constitutional theory finds its most thorough and comprehensive articulation in the Disquisition on Government. The short treatise begins with a basic understanding of human nature, moving on to an identification of the purpose of government in relation to that nature and the dangers that arise from the concentration of governmental power. It then proceeds to explain the essence of constitutional governments and provide an analysis of historical examples.

This theory is often dubbed the “concurrent majority” theory. I use “concurrent constitutionalism” because, though Calhoun never used this phrase, it more fully captures an essential characteristic of his thought—namely, that he was attempting to describe what constitutional government consisted of. He was not advocating for one particular constitutional model, but rather arguing that all constitutional governments as that term was commonly understood, partook to a greater or lesser degree in certain principles—principles of concurrence.

Calhoun begins the Disquisition by emphatically rejecting social contract theory or any other approach which would find the origin of political liberty outside of law and society. Human beings, he argued, are definitively social creatures, empirically and teleologically. Our “inclinations and wants” impel us to live with others, and we also attain our highest moral fulfillment in society.

This insistence on human sociality was the theoretical root of his rejection of the Declaration’s political philosophy. If our political theories begin with a hypothetical “state of individuality” (and it is an interesting note that he explicitly affirmed that all men would, indeed, be free and equal in such a hypothetical state), we wind up overlooking the first priority of constitutional government: the promotion of our communal life together, with the material and moral benefits that come flow from it.

But despite their importance to our nature, our social inclinations are regularly overpowered by our “individual feelings,” which often impel us to use those around us for our own ends. This presents a dilemma: human beings must by nature live in society with one another, but that same nature regularly causes us to undermine and imperil that society. Thus, government, the purpose of which is to “preserve and perfect society,” is an essential element of human existence, and the political state is man’s “natural state.”

But government itself is susceptible to the same human nature which makes its existence necessary: those empowered by a government are strongly inclined to misuse its powers for their own benefit. Thus, political liberty requires a constitution—the method by which a government, “by its own interior structure,” can be made to resist this tendency to abuse of power.

Constitutions do this by taking the sense of the community, in all its complexity and diversity, and making the government reliant upon that sense. Elections with universal suffrage are part of this process, but not at all sufficient, as they merely transfer effective power from rulers to a numerical majority which, as any number of political thinkers have observed, hardly represents the entire community. Genuinely constitutional governments, then, find a way to give a voice to the most fundamental subsections of a community and either require their concurrence for government action, or give to each a veto over the actions of government. Compromise between these sections of society becomes a political necessity and the fundamental political art by which the voice of the whole can be heard.

Calhoun’s particular style of writing in absolute terms sometimes gets in the way of understanding the flexibility and adaptability of concurrent constitutionalism. He sometimes spoke of certain observable political phenomena as if they always manifested themselves in their most extreme form. But as his examples—ranging from the Roman Republic to the Iroquois Confederacy—make it abundantly clear that what he had in mind in explaining the “laws” of politics were core, underlying political tendencies which, though always at work, would be modified by particular circumstances and manifest themselves in many different ways. The constitutions formed in response to these tendencies, moreover, would also differ greatly, taking the core principle of concurrence to a greater or less extreme, as circumstances allowed. Concurrent constitutionalism was not intended as a blueprint to follow, but as an explanation of what constitutions are, what purpose they serve, and how they arise. It was a theory that could inform statesmanship, but not take its place.

This often-overlooked flexibility also answers the most common objection to concurrent constitutionalism, namely, that it is too impractical and would lead to a paralyzed government. Calhoun’s simple answer to this criticism was that, if the principle does so, it has not been skillfully applied. In the Disquisition, He cited the liberum veto of the Polish-Lithuanian constitution as an example of the concurrent principle having been taken to such an extreme that it opened up avenues by which the government could be paralyzed from outside forces (though he does note that even this extreme form of concurrence allowed for over 100 years of flourishing). Calhoun did not seek a constitutional order which tied a government’s hands behind its back. Rather, he believed such institutions allowed for the power necessary for good government to be safely vested in the hands of political leaders. Of course, such institutions also require that all portions of society actually seek the flourishing of the whole. If any part of society would rather see the country burn to the ground than give in on some particular issue, the mechanisms are unlikely to work. But in that case, Calhoun would argue (probably correctly), republican government is as good as dead anyway.

Ultimately, the concrete institutions of any nation’s constitution are developed by statesmen, usually in a crisis situation which provides the opportunity for moderate, prudential reform as an alternative to force. Any constitutional mechanism, he stressed, must be the product of wise and moderate consideration—it must, as he said on the Senate floor, “be made to fit” the circumstances.

Calhoun’s concurrent constitutionalism was, however, decidedly pessimistic. Reflecting ancient republican attitudes, he emphasized the powerful forces at work on all constitutions tending toward corruption and dissolution. Internal and external dangers may make concentrated power unavoidable, and the ambition of public men makes them inclined to destroy concurrent mechanisms, often in the name of democracy. Such pessimism dominated his outlook on American affairs, and just before his death in 1850 he dolefully predicted that the Union would, within 12 years, break apart over a presidential election.

This understanding of constitutionalism contains timeless insights, and is particularly valuable, as Lence notes in the Foreword, when read next to The Federalist. From the extended republic theory of #10 to the conception of republicanism in #39 to the disparagement of “accident and force” in #1, Calhoun had an uncanny knack for finding the few, small cracks in that great work’s argumentation, prying them apart, and peering inside to find their origin and consequences.

Concurrent Constitutionalism in America

More than his general theory of constitutionalism, Calhoun is known for the specific doctrine of nullification—an application of the broader theory to the American federal system. Union and Liberty does not provide much insight into the first inklings Calhoun had of this idea, which are to be found in his reaction to the presidency of John Quincy Adams (particularly in the “Patrick Henry-Onslow” debate). Indeed, the collection moves from an 1816 speech in the House to the 1828 “Exposition and Protest,” a 12-year leap which might give the impression that Calhoun went from ardent nationalist to states-rights advocate overnight. But such omissions cannot be helped in a one-volume edition.

Developed in reaction to the so-called “Tariff of Abominations,” the doctrine of nullification (or, using Calhoun’s preferred term, “interposition”) held that the government of every state of the Union possessed the authority, along with the federal government, to interpret the Constitution. Further, the people of a state possessed the authority to assert the unconstitutionality of a federal law and prohibit its enforcement within the state’s bounds, at least until a federal compromise was reached or its action was overruled by a constitutional majority of three-fourths of the states. 

Continue Reading

You might also enjoy these articles...