The following is an abridged version of a chapter which will appear in the forthcoming, From Founding Fathers to Fire-Eaters: The Constitutional Doctrine of States’ Rights in the Old South
“Union among ourselves is not only necessary for our safety, but for the preservation of the common liberties and institutions of the whole confederacy. We constitute the balance wheel of our complex and beautiful political system. We are, and must continue to be, in a permanent minority in the Union. Our geographical position, our industry, pursuits, and institutions, are all peculiar. Our safety and prosperity depend on maintaining, in their full vigor, the restrictions imposed on the powers granted by the Constitution. So long as these are so maintained, and the powers confined to the objects intended by that sacred compact, we will be safe and prosperous, but no longer. There is no fear, but the stronger portions of the Union will maintain the powers in their full vigor. The limitations are of far less comparative value to them. They can protect themselves without them; and, in fact, so far from a benefit, they are but too apt to regard them as unnecessary restraints on their power. If we do not take care of them, none will, and the government will practicably become one of unlimited powers.”
– John C. Calhoun
Today, it is considered a fact that States’ rights were nothing more than a flimsy veneer for the foundational issue of slavery. A prominent neoconservative, who engaged in written and verbal debates with M.E. Bradford and Thomas DiLorenzo over the legacy of Abraham Lincoln, argues that States’ rights were an un-American, proto-fascist ideology invented by John C. Calhoun for the preservation of slavery. As he puts it, there was an “opposition” between “Calhoun’s doctrine of state rights” and “the doctrine of human rights encompassed by the Declaration.” He is wrong on both the meaning of States’ rights and the Declaration of Independence. A professor of Afro-American Studies on the opposite end of the political spectrum from the aforementioned neoconservative nevertheless agrees that States’ rights were an un-American ideology which wealthy planters like Calhoun espoused and propagated for the sake of slavery. “For him, states’ rights theory was not a vindication of local democracy, but a safeguard for the distinct interests of the Southern slaveholding minority.” According to her, States’ rights were actually a “counterrevolution of slavery” against the ideals of the American Revolution and therefore not a legitimate strain of the American political tradition. She completely dismisses Calhoun and other Southerners’ sincere insistence that States’ rights were exactly for what their forefathers had fought.
This essay series aims to right the wrongs which the commissars of acceptable opinion in academia and the media have inflicted upon the role of States’ rights in Southern history. An honest study of the great political treatises of the Old South proves that the doctrine of States’ rights was never a mere pretense for slavery, but reflected a deep passion for self-government rooted in Southern culture as well as an earnest understanding of the Constitution rooted in Southern history. According to the distinguished M.E. Bradford, States’ rights were a “patrimony” and “birthright,” dating from the foundation of the Colonies through the independence of the States and to the creation of the Constitution. President Jefferson Davis, at the crowning of the Confederate capital in Richmond, dubbed this heritage “the richest inheritance that ever fell to man, and which it is our sacred duty to transmit untarnished to our children.” John C. Calhoun’s Disquisition on Government and Discourse on the Constitution and Government of the United States, published posthumously in 1851, are the subjects of this essay.
John C. Calhoun was born on March 18, 1782, in Abbeville, South Carolina. Calhoun’s father was a tough frontiersman who settled the South Carolina backcountry and fought the Cherokee, as well as a prominent citizen who opposed the ratification of the Constitution and served as the backcountry’s first representative in the State legislature. According to Calhoun, his father introduced him to the idea that the best government was that which “allowed the largest amount of individual liberty compatible with social order and tranquility.” Calhoun grew up on a farm, working the fields with the slaves until he was eighteen. At that point, his only education had been the tutelage of his brother-in-law, a Presbyterian minister who took promising young South Carolinians under his wing. Although a Jeffersonian and Presbyterian, Calhoun traveled to the Federalist and Puritan stronghold of Connecticut in order to attend Yale College, where he excelled in his studies and left a major impression on his peers and the faculty. Calhoun briefly read law in Charleston, but was disgusted with city life – though he married into Charleston society – and returned to his humble hometown at Abbeville. Soon after, he established a plantation, “Fort Hill,” in the nearby district of Pendleton.
On the force of a speech he gave condemning the British attack on the USS Chesapeake, Calhoun was elected to represent his district in the State legislature in 1808, and next to represent South Carolina in the House of Representatives. In his first speech, Calhoun boldly challenged John Randolph of Roanoke, the firm Jeffersonian and fearsome debater who vehemently opposed the War of 1812. “Will he pretend to say that this is an offensive war, a war of conquest? Yes, the gentleman has dared to make this assertion,” charged Calhoun. “The gentleman from Virginia has it limited down to a point. By his rule, if you receive a blow on the breast, you dare not return it on the head; you are obliged to measure and return it on the precise point on which it was received. If you do not proceed with this mathematical accuracy, it ceases to be just self-defence: it becomes an unprovoked attack.” After this impressive debut, the Richmond Enquirer described Calhoun as “a master spirit who stamps his name upon the age in which he lives.” For his militancy, Randolph himself dubbed Calhoun a “war hawk.”
Appointed Secretary of War by President James Monroe in 1817, Calhoun reinvigorated what had become a defunct position and pursued a new, humane Indian policy. Calhoun’s friends told him that he was too philosophical for the position and that it would stall his career in the prime of his life, but Calhoun believed that he had a duty to serve wherever needed. Calhoun campaigned for the presidency in 1824, but bowed out once it was clear that the war hero Andrew Jackson would receive the nomination. When there was a four-way stalemate, the election passed to the House of Representatives. The appearance of a backroom deal between Henry Clay and John Quincy Adams – in which Clay, as Speaker of the House, delivered the election to Adams in exchange for the State Department, despite Jackson’s plurality – troubled Calhoun. According to Calhoun, power “improperly acquired” would be “improperly used.” Meanwhile, Calhoun had been elected Vice President in his own right, and cast tie-breaking votes against tariff and internal-improvement bills which padded the profits of Northern interests under the pretense of protection for infant industries. “This is the point of the greatest danger,” warned Calhoun, “and, if not guarded with the greatest vigilance, combinations will be formed on separate and opposing interests, which will end in despotism, as complete as that of a single and irresponsible ruler.” When Calhoun did not restrain his old adversary, Randolph, from condemning the “corrupt bargain” of Adams and Clay in the Senate, Adams, writing under the pseudonym “Patrick Henry,” publicly accused Calhoun of dereliction of duty. Calhoun, replying as “Onslow” (after Sir Arthur Onslow, a Speaker of the House of Commons who had influenced Jefferson’s Manual of Parliamentary Practice), countered that it would be tyrannical for the executive to suppress freedom of debate in the legislature.
In 1828, Calhoun was again elected Vice President, this time to President Jackson, the head of the newfound Democratic Party. Calhoun had high hopes for Jackson, whom he believed would inaugurate another Jeffersonian-style reform of the federal government. Unfortunately, Jackson was a disappointment, continuing to preside over consolidation of power and formation of factions that had been troubling Calhoun since the Tariff of 1824. Particularly offensive to Calhoun were Jackson’s weak action on the Tariff of Abominations, which exploited Southern agriculture for the benefit of Northern industry, and his scheme to distribute the federal surplus among the States, which fostered dependence rather than independence among the States. Personal disputes between the two, such as Jackson’s prickly suspicion that while heading the War Department Calhoun had criticized his conduct in the Seminole War, further strained their relationship. A commemoration of Thomas Jefferson’s birthday provided a tableau of the tension not merely between Calhoun and Jackson, but between the North and the South. “Our Federal Union: It must be preserved!” toasted Jackson. “The Union,” Calhoun toasted in reply, “next to our Liberty, the most dear!”
In 1828, Calhoun anonymously authored, and South Carolina adopted, the Exposition and Protest, declaring the Tariff of Abominations “unconstitutional, unequal, oppressive, and calculated to corrupt the public virtue and destroy the liberty of the country.” Calhoun explained that the “protection” and “appropriation” powers of the so-called American System suppressed Southern agriculture and subsidized Northern industry, thereby redistributing Southern wealth to the North. “We are the serfs of the system,” claimed Calhoun, “out of whose labor is raised, not only the money paid into the Treasury, but the funds out of which are drawn the rich rewards of the manufacturer and his associates in interest.” As sovereign parties to the Constitution, reasoned Calhoun, the States had the right to resist any federal encroachment upon their reserved rights. According to Calhoun, this “veto” was “the remedy which the Constitution has provided to prevent the encroachments of the general government on the reserved rights of the States…by which the distribution of power, between the general and State governments, may be preserved forever inviolable.” Calhoun realized that the conflict was about more than just economics, however, but existence. Southern civilization could not survive under a “consolidated government of unlimited power” controlled by an “unchecked majority” of Northerners. “Under its baneful influence,” warned Calhoun, “the noble, high-minded, chivalric spirit of the South would be beat down in low and base subserviency.”
When South Carolina finally nullified the Tariff of Abominations, declaring it unconstitutional and unenforceable within her borders, Calhoun was forced to choose between his presidential ambition and the cause of South Carolina – his career or his principles. Ultimately, Calhoun resigned the Vice Presidency and returned to his State. “Had my love of the Union and the Constitution been less, or ambition greater, I certainly would not have ventured the step,” reflected Calhoun. Promptly elected to the Senate to represent his State in the crisis, Calhoun was shocked and appalled when President Jackson called for an invasion of South Carolina. “You cannot keep the States united in their constitutional and federal bonds by force,” raged Calhoun in a debate with Massachusetts Senator Daniel Webster. “Force may, indeed, hold the parts together, but such union would be the bond between master and slave – a union of exaction on one side and unqualified obedience on the other.” Faced with civil war, Calhoun reluctantly endorsed the Compromise of 1833, brokered by Clay, which exchanged the repeal of nullification for annual reductions in the tariff over the next decade. Calhoun helped his fellow South Carolinians see nullification as a victory: a single, small State had forced a compromise in federal policy. For the rest of his life, Calhoun not only served as the leader of South Carolina – “our gallant little State” – but also a spokesman for the South in the “Great Triumvirate” with the Whigs Clay and Webster, all of whom were united in their opposition to Jackson, the first American Caesar.
Calhoun welcomed the downfall of the Second Bank of the United States, which he considered unconstitutional and corrupting, but deplored the spoils system of “pet banks” which Jackson reared in its place. Calhoun’s ideal banking system was a total “divorce” between banks and the government, the combination of which had created a “great overruling money power.” According to Calhoun, “It is to this mischievous and unholy alliance that may be traced most of the disasters that have befallen us, and the great political degeneracy of the country.” At the same time, federal acceptance of private banknotes as currency had granted banks the power to inflate the money supply, which led to ruinous financial panics and “the prostration of the currency.” In 1844, Calhoun endorsed Democratic President Martin Van Buren’s Independent Treasury System, which separated the Treasury from the banking system, adding an amendment prohibiting federal acceptance of bank paper and thus placing the government on a specie standard. The Independent Treasury lasted without any financial crises until the National Banking System in the so-called “Civil War.”
Disturbed by the malicious motives and militant methods of the emerging abolitionist movement, by 1837 Calhoun felt duty-bound “to speak freely upon the subject where the honour and interests of those I represent are involved.” According to Calhoun, Southerners had nothing of which to be ashamed. “I hold that in the present state of civilization, where two races of different origin…are brought together,” argued Calhoun, “the relation now existing between the two, is, instead of an evil, a good – a positive good.” Indeed, explained Calhoun, “under the fostering care of our institutions, reviled as they have been,” Africans had “attained a condition so civilised and so improved, not only physically but morally and intellectually.” At the same time, slavery had not “degenerated” Southern whites. “I appeal to all sides whether the South is not equal in virtue, intelligence, patriotism, courage, disinterestedness [i.e. objectivity, impartiality, etc.], and all the high qualities which adorn our nature,” challenged Calhoun. “I ask whether we have not contributed our full share of talents and political wisdom in forming and sustaining this political fabric; and whether we have not constantly inclined most strongly to the side of liberty, and been the first to see and resist the encroachments of power.” When contrasted with the “conflict between labor and capital” in the North, charged Calhoun, Southerners had no reason to apologize for their calm, contented plantation life. “The condition of society in the South exempts us from the disorders and dangers resulting from this conflict,” he claimed, “and which explains why it is that the political condition of the slaveholding States has been so much more stable and quiet than those of the North.” Calhoun was not launching a so-called counterrevolution of slavery, but merely correcting vicious slanders against his home and trying to counter passions which he feared would lead to disunion. “However sound the great body of the non-slaveholding States are at present, in the course of a few years they will be succeeded by those who will have been taught to hate the people and institutions of nearly one half of the Union, with a hatred more deadly than one hostile nation ever entertained toward another,” warned Calhoun. “It is easy to see the end. By the necessary course of events…we must become, finally, two peoples.”
After the freak accident on the USS Princeton in 1844, President John Tyler selected Calhoun to replace Abel P. Upshur as Secretary of State. In his brief term, Calhoun helped finalize Upshur’s work towards Texas statehood, forcing the controversial issue into the presidential election, which resulted in the election of pro-Texas Democrat James K. Polk. Back in the Senate, Calhoun counseled “wise and masterly inactivity” in boundary disputes with Britain and Mexico, trusting that the natural course of continental migration would deliver the disputed territories to America without any sacrifice in blood or treasure. When Polk escalated the conflict with Mexico, however, Calhoun stood alone among Southerners against what he considered an “odious” war. According to Calhoun, the war would corrupt the executive branch with power and patronage, burden the people with debt and taxes, yield the “forbidden fruit” of new territory which the North and the South would struggle to control, and turn the republic into an empire. “Our people have undergone a great change,” lamented Calhoun. “Their inclination is for conquest and empire, regardless of their institutions and liberty; or, rather, they think they hold their liberty by a divine tenure, which no imprudence on their part can defeat…We act, as if good institutions and liberty belong to us of right, and that neither neglect nor folly can deprive us of their blessing.”
In the last speech of his life, Calhoun denounced the Compromise of 1850, a series of measures which Clay had cobbled together to resolve the controversy surrounding the territory conquered from Mexico, as treating the symptom rather than curing the disease. Too weak to speak, Calhoun studied the reaction of the Senate as a colleague read his speech for him. The “primary cause” of the conflict between the North and South, argued Calhoun, was “the fact that the equilibrium between the two sections in the government, as it stood when the Constitution was ratified…has been destroyed.” Calhoun cited census data to prove that “the weight of the two sections” leaned heavily to the North, claiming that the inequality was the product of three unconstitutional federal policies. “The first is, that series of acts by which the South has been excluded from the common territory belonging to all the States as members of the Federal Union – which have had the effect of extending vastly the portion allotted to the Northern section, and restricting within narrow limits the portion left to the South,” he began. “The next consists in adopting a system of revenue and disbursements, by which an undue proportion of the burden of taxation has been imposed upon the South, and undue proportion of its proceeds appropriated to the North,” he continued. “The last is a system of political measures, by which the original character of the government has been radically changed…concentrating all power of the system in itself.” If the Compromise of 1850 were adopted, charged Calhoun, then the North would have shown that her “real objects” were “power and “aggrandizement,” and the South would be “infatuated not to act accordingly.” It was a foreboding final note.
Calhoun died on March 31, 1850. His fellow triumvirs, Clay and Webster, eulogized him in the Senate. Clay praised Calhoun’s “elevated genius of the highest order,” recalled the “charm and captivating influence of his colloquial powers,” and urged his colleagues to follow his example. “I trust we shall all be instructed by the eminent virtues and merits of his exalted character, and be taught by his bright example to fulfill our great public duties by the lights of our own judgment and the dictate of our own consciences, as he did.” Webster praised Calhoun for “his genius and character, his honor and integrity, his amiable deportment in private life, and the purity of his exalted patriotism.” In a time when the Romans were revered as exemplars of republican statesman, Webster paid Calhoun the ultimate compliment: “We saw before us a Senator of Rome, when Rome survived.” In South Carolina, the eulogies were more partisan. “We cannot but hate the tyranny that hurried him to his grave, and love the liberty for which he lived, and wasted, and died,” Robert B. Rhett, one of Calhoun’s lieutenants, told the South Carolina legislature. “Cherishing his memory, we dare not be slaves.”
Just over a century after his death, the Senate, led by John F. Kennedy, honoured Calhoun as one of the five greatest Senators in American history. “Corrupt politicians, arrogant bureaucrats and special interests, profligate taxation and spending, foreign entanglements – Calhoun has as much to say today as he did a century and a half ago,” claims Clyde N. Wilson, editor of the Calhoun Papers. “No dead politician here; rather an inimitable commentator on the great American experiment in self-government.”
Although Calhoun’s career is typically traced as a descent from nationalism to sectionalism, he was always devoted to preserving the American republic as it was founded. “I am a conservative in its broadest and fullest sense,” averred Calhoun, “and such shall I ever remain, unless, indeed, the government shall become so corrupt and disordered, that nothing short of revolution can reform it.” First, during the War of 1812 and the Era of Good Feelings, Calhoun believed that his duty was to defend the republic from the external threat of foreign powers by building national unity and securing commercial independence. “I belong to no particular section or interest,” declared Calhoun. “It has been my pride to be above all sectional or party feelings and to be devoted to the great interests of the country.” Later, beginning with the Jacksonian Revolution and continuing to the Compromise of 1850, Calhoun believed that his duty was to defend the republic from the internal threats of consolidation or disunion by upholding the rights of the States and maintaining a balance of power between the North and the South. “My aim is fixed,” pledged Calhoun. “It is no less than to turn back the government to where it commenced its operations in 1789…to take a fresh start, a new departure, on the State Rights Republican tack.” It was the challenges that Calhoun faced which changed, not his principles.
Calhoun’s career is also commonly mischaracterized as a relentless quest for the presidency. Although Calhoun desired the presidency as a young man, he knew that his principled stand in the Tariff Crisis ended his promising prospects. Calhoun kept his name in future presidential elections in order to give his ideas and the South a national voice, but he recognized that he was no longer a serious contender. Indeed, just as today’s Ron Paul exposed Americans to liberty, peace, and the gold standard, Calhoun exposed Americans to “Free Trade; Low Duties; No Debt; Separation from Banks; Economy, Retrenchment; and Strict Adherence to the Constitution.” The best way to characterize Calhoun’s career is not as a foiled presidential aspirant, but as that of a statesman, rising above the temporizing and dissembling politician in order to discern and perhaps direct the underlying forces determining the fate of his people. While Democrat and Whig politicians thought only of the next election, Calhoun thought of the next generation. “Far higher motives impel me, a sense of duty – to do our best for our country, and leave the rest to Providence,” Calhoun confided to his daughter, Anna, who wondered what motivated him to fight what appeared to be a lost cause. “I hold the duties of life to be greater than life itself, and that in performing them manfully, even against hope, our labour is not lost, but will be productive of good in after times.”
Far from a “disunionist,” Calhoun did as much as anyone to preserve the Union in a time of tremendous change and conflict. Indeed, in 1843, Calhoun quelled the Blufton Movement, a truly disunionist revolution among his own acolytes in South Carolina, which erupted against the “Black Tariff” and Northern opposition to Texas statehood. Unlike many of his peers, who worshipped the Union with eloquent but empty rhetoric, Calhoun searched for actual solutions to the sectional crisis. “The Union cannot be saved by eulogies on the Union, however splendid or numerous,” remarked Calhoun. “The cry of ‘Union, Union, the glorious Union!’ can no more prevent disunion than the cry of ‘Health, health, glorious health!’ on the part of the physician, can save a patient lying dangerously ill.”
The usual description of Calhoun is as “a cast-iron man, who looks as if he had never been born and never could be extinguished” and “the high priest of Moloch – the embodied spirit of slavery.” Photographs of a skeletal Calhoun are shown to reinforce this grim image. Yet those insults came from an unfriendly, stuffy Englishwoman and the bitter, hateful John Quincy Adams, and those skeletal photographs were taken at the end of his life during his final illness. The truth is that Calhoun was a charming and handsome man and loved by those who knew him. He was patient with a difficult wife, Floride, and affectionate and supportive of his children, especially his eldest daughter and kindred spirit, Anna. When Varina Davis, the wife of Mississippi Senator and future Confederate President Jefferson Davis, met Calhoun for the first time, she braced herself for the “stern zealot” of legend. Instead, to the envy of other ladies at the ball, the two spent the evening in conversation and became lifelong friends.
In the final years of his life, Calhoun wrote two complementary political treatises, A Disquisition on Government and A Discourse on the Constitution and Government of the United States. The Disquisition is an original and outstanding work of political theory – “the elementary principles of the science of government,” as Calhoun put it – comparable to the works of John Locke and the Baron de Montesquieu. Lord Acton, the great English classical liberal, described the Disquisition as “the very perfection of political truth” and “extremely applicable to the politics of the present day.” John S. Mill, another leading English liberal, described the Disquisition as a “work of great ability,” specifically admiring Calhoun’s “extension of the practice of cooperation through which the weak, by uniting, can meet on equal terms with the strong.” The Disquisition, however, was a “preliminary” to the Discourse, a work of political history drawing heavily from Founding documents – the records of the Constitutional Convention and the ratification debates, the Virginia and Kentucky Resolutions, and the Virginia Report of 1800 – to demonstrate that the American republic was the embodiment of the principles of the Disquisition. The Discourse, hoped Calhoun, would have the scope of the Federalist and the truth of the Virginia & Kentucky Resolutions. Together, the Disquisition and Discourse are the pinnacle of Southern political philosophy.
Calhoun began his Disquisition with a question: “What is that constitution or law of our nature, without which government would not exist, and with which its existence is necessary?” In other words, why was government necessary? Calhoun’s answer was premised on two “incontestable” facts. The first was that man was a social creature. “His inclinations and wants, physical and moral, irresistibly impel him to associate with his own kind; and he has, accordingly, never been found, in any age or country, in any state other than the social.” The second was that man’s social state required a government. “In no age or country has any society or community ever been found, whether enlightened or savage, without government of some description.” Calhoun asserted that these premises – man’s need for society and a society’s need for government – were “unquestionable phenomena of our nature.”
Calhoun next asked why government was necessary for society when man is naturally a social creature. Man’s “direct or individual affections” were stronger than his “sympathetic or social feelings,” answered Calhoun. There were, of course, “extraordinary” exceptions, such as the selfless love of a mother for her child, but these were merely exceptions that proved the rule. Indeed, Calhoun believed that the preference for the self over others was a law “of all animated existence,” not just human nature. “It would, indeed, seem to be essentially connected with the great law of self-preservation which pervades all that feels, from man down to the lowest and most insignificant reptile or insect.” However civilized man became, he would never outgrow this basic instinct. “His social feelings may, indeed, in a state of safety and abundance, combined with high intellectual and moral culture, acquire great expansion and feeling; but not as great as to overpower this all-pervading and essential law of animated existence.”
Because man was fundamentally self-interested rather than selfless, he valued his own wellbeing over the wellbeing of others and was willing to sacrifice that of others for the sake of his own. To prevent this anarchy, the violent “passions” of which were destructive of the social state for which man was intended, a “controlling power” of government, to protect and perfect society, is necessary. Therefore, government came from man’s duality: his social nature the “remote” cause, his individual nature the “proximate” cause.
Between the government and society, however, society was “greater.” Society, or the “social state,” was man’s natural state; government, or the “political state,” was an artificial institution. “It is the first in the order of things, and in the dignity of its object,” explained Calhoun. “That of society being primary – to preserve and perfect our race; and that of government secondary and subordinate, to preserve and protect society.”
Although government was entrusted with power for the protection of society, Calhoun pointed out that history proved that government would abuse its power and oppress society. A government, after all, was nothing more than an organization of men, all of whom had the same self-interested nature which necessitated government in the first place. “Hence, the powers vested in them to prevent injustice and oppression on the part of others, will, if left unguarded, be by them converted into instruments to oppress the rest of the community.” A “constitution,” according to Calhoun, had the same role vis-à-vis the government as the government had vis-à-vis society: its protection and perfection. “Having its origin in the same principle of our nature, constitution stands to government, as government stands to society; and as the end for which society is ordained, would be defeated without government, so that for which government is ordained would…be defeated without constitution.” The ideal constitution, therefore, was one that would “completely counteract the tendency of government to oppression and abuse, and hold it strictly to the great ends for which it is ordained.”
To prevent the abuse of power and oppression, extremes should be avoided. On the one extreme, creating a higher power over the government ignored the fundamental problem of trusting man with absolute power. “This would be but to change the seat of authority, and to make this higher power, in reality, the government; with the same tendency, on the part of those who might control its powers, to pervert them into instruments of aggrandizement.” On the other extreme, weakening the government so that it was “too feeble to be made an instrument of abuse” would leave it unable to protect and preserve society. The one extreme made government dangerous; the other, useless.
Calhoun concluded that the only way to prevent the abuse of power and oppression of society was “to furnish the ruled with the means of resisting successfully this tendency on the part of the rulers.” As Calhoun put it, “Power can only be resisted by power.” With “the means of making peaceable and effective resistance,” abuse and oppression would be thwarted. This form of legal resistance was “the responsibility of the rulers to the ruled, through the right of suffrage,” which Calhoun considered “the indispensable and primary principle in the foundation of a constitutional government.” According to Calhoun, “Where this right is properly guarded, and the people sufficiently enlightened to understand their own rights and the interests of the community, and duly to appreciate the motives and conduct of those appointed to make and execute the laws, it is all-sufficient to give to those who elect, effective control over those they have elected.”
Suffrage, however, was no panacea for the problem, insisted Calhoun. All that suffrage could accomplish was allow the ruled to choose their own rulers, establishing the “sovereignty” of society over the government and converting “irresponsible rulers” into “true and faithful representatives.” This was a vital first step, conceded Calhoun, but while suffrage may turn rulers into representatives, it did not prevent man, with his self-interested nature, from electing representatives who would advance his own interests over those of others. “It only changes the seat of authority, without counteracting, in the least, the tendency of the government to oppression and abuse of its powers.”
If the interests – by which Calhoun did not mean in a strictly economic sense, but more as a Jeffersonian “pursuit of happiness” – of every part of society were identical, then suffrage would be a sufficient constitution, for the law would affect all equally. Society, however, was comprised of many different interests, meaning that the law would not affect all equally and that there was the possibility that one part of society could abuse its power and oppress another part. “Nothing is more difficult than to equalize the action of the government, in reference to the various and diversified interests of the community; and nothing more easy than to pervert its powers into instruments to aggrandize and enrich one or more interests by oppressing and impoverishing the others.” Calhoun noted that this problem deepened with scale: the larger and more diverse the society, the harder it was for the government to “equalize” the law and the easier it was for a majority of society to enrich itself at the expense of a minority. Suffrage alone, therefore, was no safeguard against the self-interested nature of man.
To paint a picture of this oppression of the smaller part of society by the larger part, Calhoun drew on his own experience with “unequal fiscal action of the government.” Taxation and expenditure were two of the basic functions of the government, but while they were “correlatives” they were not “equal.” The money taxed from society was not expended equally among society – indeed, it could not be, for if it were, then fiscal policy would be “nugatory and absurd” – but rather was redistributed from one part of society to another. Even if the burden of taxation were equal among each of the parts of society, the benefits of expenditures must necessarily be unequal. “Such being the case, it must necessarily follow, that one portion of the community must pay in taxes more than it receives back in disbursements; while another receives in disbursements more than it pays in taxes.” Thus, to one part of society, taxes represented “burthens,” while to another, taxes represented “bounties,” two classes which Calhoun termed “tax-payers” and “tax-consumers,” respectively. Calhoun freely recognized that this disparity between taxes and expenditures, however unfortunate, was “unavoidable,” and not necessarily oppressive. The risk, to Calhoun, was in the abuse of the taxing and spending power, not in the power itself. “This, indeed, may be carried to such an extent, that tone class or portion of the community may be elevated to wealth and power, and the other depressed to abject poverty and dependence, simply by the fiscal action of the government.” Due to man’s self-interested nature, however, Calhoun was certain that this power would be perverted. “That it will be so used, unless prevented, is, from the constitution of man, just as certain as that it can be so used.” To Calhoun, this illustration was very real, as his South Carolina was indeed a tax-paying minority to a Northern tax-paying majority. Likewise, today 1% of the U.S. population – that same 1% which the lying, cheating Hillary Clinton claims does not pay its fair share – pays almost half of all federal taxes and 10% pays almost all!
Since suffrage was not sufficient to prevent the tyranny of a tax-consuming majority over the tax-paying minority – in fact, suffrage actually enabled such abuse and oppression – Calhoun concluded that suffrage alone was not a just constitution. Another provision, one which would keep the majority from enriching itself at the expense of the minority, was necessary. This meant obtaining the consent of each part of society – especially that of the interests “unequally and injuriously affected” – before proceeding with any course of action. Each part of society would have “either a concurrent voice in the making and executing of laws, or a veto on their execution.” According to Calhoun, “It is only by such an organism, that the assent of each can be made necessary to put the government in motion, or the power made effectual to arrest its action, when put in motion; and it is only by the one or the other that the different interests, orders, classes, or portions, into which the community may be divided, can be protected, and all conflict and struggle between them prevented – by rendering it impossible to put or keep it in action, without the concurrent consent of all.” Thus, Calhoun proposed rule by consensus rather than rule by majority.
The right of suffrage combined with the principle of a “concurrent majority,” concluded Calhoun, were the twin pillars of a just constitution. “Suffrage, by rendering those who make and execute the laws responsible to those on whom they operate, prevents the rulers from oppressing the ruled.” A concurrent majority, “by making it impossible for any one interest or combination of interests, or class, or order, or portion of the community, to obtain exclusive control, prevents any one of them from oppressing the other.” In other words, the former prevented tyranny over all; the latter prevented tyranny of the majority over the minority.
One criticism of Calhoun’s idea of a concurrent majority then and now is that it is anti-democratic because it allows a minority to overrule the will of the majority. Indeed, the Tenth Amendment Center, a public-policy institute dedicated to political decentralization, dismisses Calhoun’s theory as “absurd” and “idiotic,” claiming that Calhoun was a “slaver from South Carolina” who “dreamed up” the idea to “allow one geographical area to hold the rest of the country hostage” and “protect and advance human bondage.” Calhoun did not see it that way, however. Rather than undermine the democratic process, the role of concurrence was to “aid and protect it.” The role of suffrage, explained Calhoun, was to “collect the sense of the greater number; that is, of the stronger interests, or combination of interests.” The sense of the majority, however, was not necessarily the sense of the whole of society, which was what concurrence collected. Concurrence, therefore, did not make minorities rulers over majorities, but ensured that all of society was united behind the government’s course of action. According to Calhoun, there were two different conceptions of a majority. One, “the numerical, or absolute majority,” regarded the will of the greater number as the will of society. Calhoun’s majority, however, the “concurrent, or constitutional majority,” regarded the sense of all of society’s separate and opposing interests as the will of society – “the united sense of all.” To Calhoun, democracy must mean more than two wolves and a sheep voting on what to eat for dinner.
Calhoun boldly challenged the two dominant strains of the American political tradition: Republicanism and Federalism, or their respective avatars, Thomas Jefferson and John Adams. Both were right in their basic premises, recognized Calhoun, but had strayed in their logic and come to some wrong conclusions. Feeling the immense responsibility of maintaining what the Founding Fathers had achieved, Calhoun eschewed mere ancestor worship and undertook the intimidating but important task of critically reexamining their philosophy in order to uphold its essential elements and amend its errors and excesses.
Against the Republicans, Calhoun denied that the absolute majority was a just basis for constitutional government. “If the numerical majority were really the people; and if, to take its sense truly, were to take the sense of the people truly, a government so constituted would be a true and perfect model of popular constitutional government,” reasoned Calhoun. “But, as such is not the case – as the numerical majority, instead of being the people, is only a portion of them – such a government, instead of being a true and perfect model of the people’s government, that is, a people self-governed, is but the government of a part, over a part – the major over the minor portion.” Conflating the absolute majority with the will of society, avowed Calhoun, was “false and fatal” to “preserving and perpetuating” a constitution, and thus to protecting and perfecting society.
Against the Federalists, Calhoun denied that written constitutions, with their checks and balances, could limit the government. “A written constitution certainly has many and considerable advantages; but it is a great mistake to suppose, that the mere insertion of provisions to restrict and limit the powers of the government, without investing those for whose protection they are inserted with the means of enforcing their observance, will be sufficient to prevent the major and dominant party from abusing its powers.” In other words, a constitution did not enforce itself and governments did not limit themselves; the people must have the power to do so themselves. If the people could not uphold their constitution themselves, then the constitution would become a battleground of competing constructions: the majority party adopting a “liberal” construction so as to maximize its power and the minority party adopting a “strict” construction for its own protection. In a clash of “construction against construction,” the opposition would have no recourse save for “an appeal to reason, truth, justice, or the obligations imposed by the constitution,” and although it may make an inspiring stand against “the march of encroachment,” they would ultimately be “overpowered” and branded “mere abstractionists.” As Calhoun bitterly remarked, if reason, truth, and justice were enough to persuade men to do right, then government would not be necessary in the first place. Once the opposition was defeated, the “subversion of the constitution” would be complete and the government would be “converted into one of unlimited powers.” Calhoun might have known that he had just written his own epitaph.
After addressing the flaws of Republicanism and Federalism, Calhoun continued to elaborate on the concurrent majority. The essence of the concurrent majority, he explained, was for each part of society to have a “negative” on the others. “It is this mutual negative among its various conflict interests, which invests each with the power of protecting itself, and places the rights and safety of each, where they can only be securely placed, under its own guardianship.” Without this negative, there would be no legal mechanism for the enforcement of a constitution, and thus no constitution at all. According to Calhoun, the negative, by whatever name it was called – “veto, interposition, nullification, check, or balance of power” – was the cornerstone of a constitution. On the other hand, the “positive” power – the power of the government to act – was the cornerstone of the government. “The one is the power of acting; and the other the power of preventing or arresting action,” noted Calhoun. “The two, combined, make constitutional governments.” Therefore, a government of the absolute majority, lacking the crucial negative power, was not a true constitutional government. Indeed, a democracy of “one power” – in which the absolute majority had “sole control” of the government – could be just as tyrannous as any “monarchical or aristocratical” government. A constitutional government, by contrast, did not permit one power to possess sole control, but governed with the consent of every part of society. According to Calhoun, the difference between governments was not whether they were “of the few, or the many,” but whether they were “constitutional” or “absolute.”
A constitutional and absolute government could be distinguished by their philosophical bases – “the principle by which they are upheld and preserved.” In a constitutional government, this “conservative principle” was “compromise,” but in an absolute government, it was “force.” No doubt Calhoun had in mind President Andrew Jackson’s threat to invade the sovereign State of South Carolina and have him hanged, as well as the gathering storm that would break in President Abraham Lincoln’s war against eleven sovereign States.
Under an absolute government, there was no legal recourse against abuse of power and oppression, leaving the people no choice but to “acquiesce in oppression” or “resort to force to put down the government.” Afraid of such popular resistance, an absolute government naturally prepared to counter force with force – “and hence, of necessity, force becomes the conservative principle of all such governments.” Under a constitutional government, however, where each part of society had a negative power to protect itself against the other parts, all of the parts must cooperate to promote the interests of all rather than the interests of one over another. “It is by means of such authorized and effectual resistance, that oppression is prevented, and the necessity of resorting to force superseded, in governments of the concurrent majority,” Calhoun asserted of the negative power, “and, hence, compromise instead of force, becomes their conservative principle.”
Calhoun despised political parties, believing that they corrupted republican virtue and destroyed constitutional government. For one, party strife would degenerate into civil war. “The conflict between the two parties must be transferred, sooner or later, from an appeal to the ballot-box to an appeal to force.” In order to maintain unity in the partisan struggle for power, parties would be come under the control of a few unscrupulous leaders, dispensing “rewards” to their followers and “discipline” on those whom disobey the party line. If parties were in the hands of a few men, reasoned Calhoun, and an absolute government was in the hands of the majority party, then the government would be, in effect, in the hands of those party bosses. The two parties, fixated on power, would become more preoccupied with simply holding office than serving society, and thus adopt increasingly dishonourable tactics to stay in power. “Principles and policy would lose all influence in the elections; and cunning, falsehood, deception, slander, fraud, and gross appeals to the appetites of the lowest and most worthless portions of the community, would take the place of sound reason and wise debate.” The government would lurch back and forth between the two parties, neither of which stood for anything except themselves, until “confusion, corruption, disorder, and anarchy, would lead to an appeal to force – to be fulfilled by a revolution in the form of government” – probably a “military power.” Parties also divided society against itself, replacing sympathy and loyalty with antipathy and rivalry. “In such governments, devotion to party becomes stronger than devotion to country – the promotion of the interests of one party more important than the promotion of the common good of the whole.” As a result, society’s sense of “moral obligations” to all of its parts would dissolve. “That which corrupts and debases the community politically, must also corrupt and debase it morally.” Calhoun was thinking of the Whigs and Democrats of his own time, but he also painted a perfect picture of today’s farcical contest between the Republicans and Democrats, neither of whom believe in anything except getting elected, and both of whom are constantly at daggers drawn over the most trivial of issues.
A concurrent majority avoided all of the pitfalls of party politics, claimed Calhoun, uniting rather than dividing society. Since each part of society had a “power of self-protection,” the whole point of party politics – to gain control of the government for the advancement of its own interests – was void. Instead of struggling to advance one interest over another, the only way to advance the interest of one would be to advance the interest of all. “Instead of faction, strife, and struggle for party ascendancy, there would be patriotism, nationality, harmony, and a struggle only for supremacy in promoting the common good of the whole.”
According to Calhoun, the role of government was to “protect” and “perfect” society. While the protection of society required security, the perfection of society required liberty. “Liberty leaves each free to pursue the course he may deem best to promote his interest and happiness, as far as it may be compatible with the primary end for which government is ordained,” stated Calhoun, “while security gives assurance to each, that he shall not be deprived of the fruits of his exertion to better his condition.” Extremes on both sides must be avoided, cautioned Calhoun: weakening the government beyond its legitimate sphere in the name of liberty would threaten the protection of society, but strengthening the government beyond its legitimate sphere in the name of security would threaten the perfection of society. Thus, the government must balance liberty and security in their “proper spheres.”
Calhoun warned against two “great and dangerous errors” relating to liberty. The first error was that “all people are equally entitled to liberty.” According to Calhoun, liberty, strictly speaking, was not a right, but rather a privilege. “It is a reward to be earned, not a blessing to be gratuitously lavished on all alike; a reward reserved for the intelligent, the patriotic, the virtuous, and deserving; and not a boon to be bestowed on a people too ignorant, degraded, or vicious, to be capable of either appreciating or enjoying it.” Liberty was the crowning achievement of civilization, signifying “the development of our faculties, moral and intellectual.” Liberty was not a natural endowment, but a patrimony of which a society must prove itself worthy. Although liberty was “among the greatest of blessings” to some, it could be among the greatest of curses to others, resulting in “lawless and despotic rule.” Calhoun did not mean that some societies would never be worthy of liberty, but insisted that interfering with “the progress of a people rising from a lower to higher point in the scale of liberty” would either “retard” or “defeat” progress altogether.
The second error was that “liberty and equality are so intricately united, that liberty cannot be perfect without perfect equality.” As with the concept of a majority, Calhoun pointed out that there two different conceptions of equality – legal and material – and that it was necessary to distinguish between them. Legal equality of all citizens was indeed imperative to liberty, but material equality was, in fact, inimical to liberty. Since all men differed in abilities and circumstances, argued Calhoun, there will always be material inequality between them. The “mainspring” of progress, however, was “the desire of individuals to better their condition.” Making all men materially equal, however – whether by making the rich poorer or the poor richer – would foster complacency and stifle progress. “To force the front rank back to the rear, or to attempt to push forward the rear into line with the front, by the interposition of the government, would put an end to the impulse, and effectually arrest the march of progress.” For viewing history in terms of class conflict – between tax-payers and tax-consumers – Calhoun has been branded “the Marx of the Master Class,” yet this is as succinct of a refutation of socialism as any.
Calhoun controversially concluded that it was “unfounded and false” that “all men are born free and equal.” In fact, nothing could be further from the truth. They were not born free: liberty was a reward to be earned and a patrimony to be protected. They were not born equal: men were unequal in ability and must work to better themselves. Here, Calhoun is typically mischaracterized as rationalizing the supremacy of the white race over the black race – of defending slavery. While the problem of slavery was certainly a concern which Calhoun meant to address (given that neither Southerners nor Northerners were willing to tolerate citizenship for blacks, the supremacy of white over black seemed the only practical solution at the time), his overruling concern was the rise of a levelling, centralizing egalitarianism which threatened to subvert traditional American republicanism. Or, to employ Calhoun’s terms, the rise of absolutism over concurrence. Calhoun’s theory of liberty and equality was sharply at odds with the idealism that is supposed to have suffused the Founding Era, yet that idealism is mostly modern wishful thinking. The American secession from the British Empire was not an egalitarian revolution, but a conservative counterrevolution to protect the Colonies’ traditional rights from an actual absolutist revolution in British governance, and the Constitution was ratified to protect and perfect the various societies of the States, not to revolutionize them.
A concurrent majority, claimed Calhoun, maximized the twin responsibilities of the government – liberty and security. Because a concurrent majority prevented the government from “passing beyond its proper limits” and limited it to “the protection of society,” all else was left “open and free,” thus securing liberty. A constitutional government, “by giving to each portion of the community which may be unequally affected by its action, a negative on the others, prevents all partial or local legislation, and restricts its action to such measures as are designed for the protection and the good of the whole.” This negative, continued Calhoun, “secures, at the same time, the rights and liberty of the people, regarded individually; as each portion consists of those who, whatever may be the diversity of interests among themselves, have the same interest in reference to the action of the government.” In his discussion of how concurrence protected liberty, Calhoun made an important point which modern libertarians often overlook: “It is only through an organism which vests each with a negative, in some form or another, that those who have like interests in preventing the government from passing beyond its proper sphere, and encroaching on the rights and liberties of individuals, can cooperate peaceably and effectively in resisting the encroachments of power, and thereby reserve their rights and liberty.” Individual resistance, argued Calhoun, was too disorganized and weak against an organized and powerful government. Even if enough force were marshaled to overthrow an oppressive government, then that same force could be used to establish a government just as bad or even worse. Calhoun, like many Americans, was deeply disturbed by the French Revolution, in which the people overthrew the tyrannous Ancien Regime, only to replace it with the bloodthirsty collectivism of the Terror and the imperialism of Napoleon. Only through established institutions, avowed Calhoun, could the people retain or reclaim their liberty.
In addition to protecting liberty, a concurrent majority also promoted security, without which there could be no liberty. Since such a concurrent majority protected liberty, reasoned Calhoun, and liberty enabled progress, then a concurrent majority would also promote progress. The “inventions and improvements” from progress, such as gunpowder and the steam engine, had made societies more powerful, and therefore safer. Thus, the freest societies were also the safest societies. Liberty, continued Calhoun, was also morally uplifting, promoting virtues which made society stronger, such as industry and duty. “All these causes combined, gave to a community its maximum of power.”
Calhoun noted three “plausible” objections to the concurrent majority and dispatched of them in detail. The first objection was that freedom of the press would positively influence public opinion so as to prevent oppression and the abuse of power, thereby defeating the vices of an absolute majority and rendering such a complicated constitution obsolete – “that the defects inherent in the government of the numerical majority may be remedied by a free press, as the organ of public opinion.” Calhoun recognized that a free press was a “new and important political element” responsible for “great and beneficial” improvements in society, but held that it was, at best, a complement to rather than a substitute for a concurrent majority. The press may keep the people informed and make society safer and freer, admitted Calhoun, but it could not change the self-interested nature of man. So long as man’s individual feelings prevailed over his social feelings, a government was necessary to protect and perfect society, and so long as a government was necessary, a concurrent majority was necessary to prevent the abuse of power and oppression. Furthermore, the press could be used for evil as well as good. According to Calhoun, “what is called public opinion” was not always “the united opinion of the whole community,” but “the opinion or voice of the strongest interest, or combination of interests; and, not infrequently, of a small, but energetic and active portion of the whole.” Rather than an “organ of the whole,” the press was often an organ of parties, used not for enlightening public opinion, but for “controlling public opinion…as to promote their peculiar interests, and to aid in carrying on the warfare of party.” If anything, concluded Calhoun, the potential vicious influence of a free press upon public opinion increased the necessity of a concurrent majority. Today, when the news networks all spin the same story so much that their two accounts are practically unrecognizable, the failure of the press as a restraint on the abuse of power and oppression is all too evident.
The second objection was that a concurrent majority was too complicated of a constitution. Calhoun conceded that an absolute majority was indeed simpler than a concurrent majority, but noted that if simplicity were the standard, then absolute monarchy – “the most simple of all” – would be the ideal form of government. To Calhoun, a constitution was not abstract, but organic, growing from experience rather than ideals. The men who framed a constitution were not remaking their society, but preserving their society. “A constitution, to succeed, must spring from the bosom of the community, and be adapted to the intelligence and character of the people, and all the multifarious relations, internal and external, which distinguish one people from another.” Thus, necessity, not simplicity, was the point: constitutions were “products of circumstances.” A complicated constitution which balanced all of the parts of society and governed with consensus was superior to a simple constitution which empowered the majority to tyrannize the minority. Instead of reading fourteen Lincoln biographies for inspiration and consulting with James M. McPherson on how to reconstruct the Middle East as democracy – using the “reconstruction” of the conquered Confederate States as a model – President George W. Bush might have profited immensely from Calhoun’s insight that the best constitutions were those adapted to their people.
The third objection was that a concurrent majority was “impracticable” – that all of the parts of society would never be able to agree on anything. Calhoun held that the “necessity” of maintaining the government would force opposing interests into settling on compromises. “When something must be done, and when it can be done only by the united consent of all, the necessity of the case will force to a compromise,” claimed Calhoun. “On all questions of acting, necessity, where it exists, is the overruling motive.” As an example of necessity forcing compromise, Calhoun cited the trial by jury: twelve jurors, with nothing more than a “disposition to harmonize,” coming to a unanimous verdict. According to Calhoun, the same incentive that made jury trials so effective would also make a concurrent majority effective. In fact, Calhoun believed that because of the patriotic virtues that a fair, balanced constitution fostered among the people, all the parts of society would cooperate in sacrificing their own interests for the greater good. “Impelled by the imperious necessity of preventing the suspension of the action of government, with the fatal consequences to which it would lead, and by the strong additional impulse derived from an ardent love of country, each portion would regard the sacrifice it might have to make by yielding its peculiar interest to secure the common interest and safety of all, including its own, as nothing compared to the evils that would be inflicted on all, including its own, by pertinaciously adhering to a different line of action.” For those who still doubted the practicality of a concurrent majority, Calhoun cited Poland, the Iroquois Confederacy, Britain, and Rome as models of constitutional governments of rule by consensus rather than rule by majority.
After concluding the Disquisition, Calhoun then proceeded to apply his theory to the American political system in the Discourse, opening with a brief summary of the system:
“Ours is a system of governments, compounded of the separate governments of the several States composing the Union, and of one common government of all its members, called the government of the United States. The former preceded the latter, which was created by their agency. Each was framed by written constitutions; those of the several States by the people of each, acting separately and in their sovereign character; and that of the United States, by the same, acting in the same character but jointly instead of separately. All were formed on the same model. They all divide the powers of government into legislative, executive, and judicial; and are founded on the great principle of the responsibility of the rulers to the ruled. The entire powers of government are divided between the two; those of a more general character being specifically delegated to the United States; and all others not delegated, being reserved to the several States in their separate character. Each, within its appropriate sphere, possesses all the attributes, and performs all the functions of government. Neither is perfect without the other. The two, combined, form one entire and perfect government.”
According to Calhoun, the United States was a “democratic, federal republic.” In the first section of the Discourse, Calhoun undertook to prove each of these three propositions.
The United States was democratic, claimed Calhoun, for “classes, orders, and all artificial distinctions” were prohibited. Moreover, its “fundamental principle” and “great cardinal maxim” was that the people were “the source of all power,” that governments were “created by them, and for them,” that powers were “delegated” rather than “surrendered,” and that delegated powers were “held in trust.” According to Calhoun, “The whole system is, indeed, democratic throughout.”
The United States was federal rather than national, continued Calhoun, because it was “the government of States united in political union, in contradistinction to a government of individuals socially united…the government of a community of States, and not the government of a single State or nation.”
In distinguishing between a federal and national government, Calhoun was not splitting hairs or dancing on the head of a pin. “Of all the questions which can arise under our system of government, this is by far the most important,” avowed Calhoun. “It involves many others of great magnitude.” If the United States were federal, for example, then the States would “stand as equals and coordinates in their respective spheres,” the citizens would be “politically connected through their respective States,” and the allegiance of the citizen would be “due to his respective State.” If the United States were national, however, then the States would “stand…in the relation of inferior and subordinate,” the citizens would be “fused…into one general mass…united socially and not politically,” and the allegiance of the citizen would be owed to “the nation…what is called the American people.” Thus, the answer to the question was indeed momentous.
To prove that the United States was federal, Calhoun referred back to the Constitutional Convention itself. When George Washington, as president of the Convention, submitted the new Constitution to the Congress, he described it as “the general government of the Union” and “the federal government of these States.” Thus, the Constitution, if adopted, would form a government of the States in a political union. These expressions were full of meaning, explained Calhoun, and not used without “due consideration, and an accurate and full knowledge of their true import.” At the beginning of the proceedings, the party behind the Convention – the Federalists – advanced a plan for a new constitution which they described as “national.” By the end, after fierce debate, the opposition party prevailed, and the national plan was replaced with a plan for “the United States” – the term “national” was omitted altogether. Calhoun argued that the name “United States” clearly meant “the States united in a federal Union,” as the Convention informed the Congress in Washington’s letter.
Indeed, explained Calhoun, it could not have meant anything else, for it was “an old and familiar phrase, having a well-defined meaning.” It was the “baptismal name of these States,” first used in the Declaration of Independence, which proclaimed the former Colonies to be “free and independent States,” with the “full power to levy war, conclude peace, contract alliances, and to do all the other acts and things which independent States may of right do.” Thus, the “United States” was first used to declare that the States were sovereign – just as sovereign as any other nation. The name was next used in the first system of American governments, the Articles of Confederation, which declared, “Each State retains its sovereignty, freedom, and independence; and every power, jurisdiction, and right, which is not, by this confederation, expressly delegated to the United States in Congress assembled.” Thus, the sovereignty of the States claimed in the Declaration was retained under the Articles. “The retention of the same style, throughout every stage of their existence, affords strong, if not conclusive evidence that the political relation between these States, under their present constitution and government, is substantially the same as under the confederacy and revolutionary government; and what that relation was we are not left to doubt; as they declared expressly to be ‘free, independent, and sovereign States,’” argued Calhoun. “They, then, are now united, and have been, throughout, simply as confederated States.” The changes to the Confederation under the Constitution were “not in the foundation” – in which case, a new name other than “United States” would have been appropriate – but “in the superstructure of the system.” Again, in the Convention’s letter to Congress, it described the Constitution as a “different organization” of government. “We thus have the authority of the Convention itself, for asserting that the expression, ‘United States,’ has essentially the same meaning, when applied to the present constitution and government, as it had previously; and, of course, that the States have retained their separate existence, as independent and sovereign communities, in all forms of political existence, through which they have passed.”
Despite this “conclusive” evidence that the United States was federal rather than national, Calhoun admitted that the latter opinion was prevalent. “The question involved is one of the first magnitude, and deserves to be investigated thoroughly in all it aspects,” stated Calhoun. “With this impression, I deem it proper – clear and conclusive as I regard the reasons assigned to prove its federal character – to confirm them by historical references; and to repel the arguments adduced to prove it to be a national government.”
According to Calhoun, the States framed and ratified the Constitution. “That the delegates who constituted the Convention which framed the Constitution, were appointed by the several States, each on its own authority; that they united in the Convention by States; and that they voted in the Convention by States; and that they were counted by States, are recorded and unquestionable facts,” insisted Calhoun. “So, also, the facts that the Constitution, when framed, was submitted to the people of the several States, for their respective ratification; that it was ratified by them, each for itself; and that it was binding on each, only in consequence of being so ratified by it.” Indeed, it was the ratification of the Constitution by the States – nine were needed for it to take effect among the ratifying parties – which enacted the Constitution into law. If the United States were truly national rather than federal, then the States must have divested themselves of their sovereignty in their acts of ratification. “Whether, then, the government is federal or national, is reduced to a single question,” reasoned Calhoun. “Whether the act of ratification, of itself, or the constitution, by some one or all of its provisions, did, or did not, divest the several States of their character of separate, independent, and sovereign communities, and merge them all in one great community or nation, called the American people?”
Calhoun claimed that such a “radical revolution” in the relations of the States would require overwhelming evidence – the burden of proof is on the positive claim, after all – but noted that there was little to none, and that most of what was adduced was nothing more than pettifoggery and sophistry. There was, however, ample evidence that the United States remained federal under the Constitution. In their “colonial condition,” the States were “distinct communities, each with her separate charter and government, and in no way connected with each other, except as dependent members of a common empire.” Their first union was as the “United Colonies,” pledged against the usurpation of their chartered rights as Englishmen. They remained the United Colonies – “always, in joint councils, voting and acting as separate and distinct communities; and not in the aggregate, as composing one community or nation” – until they “passed from their dependent colonial condition, into that of free and sovereign States.” The vote to declare independence was made by delegates from each Colony, each voting for herself. The vote was announced as “unanimous,” not because every delegate voted aye, but because the majority of each delegation did – “showing clearly, that the body itself, regarded it as the united act of the several Colonies, and not the act of the whole as one community.” Having declared themselves “free and independent States,” the Continental Congress formed the Articles of Confederation, which were ratified by the States in their sovereign capacities. Soon after the American Revolution, the States adopted the Constitution for the purpose of amending some of the shortcomings of the Articles. According to Calhoun, the Constitution “received the assent of the States in all the possible modes in which it could be obtained: first, in their confederated character, through its only appropriate organ, the Congress; next, in their individual character, as separate States, through their respective State governments, to which the Congress referred it; and finally, in the high character of independent and sovereign communities, through a convention of the people, called in each State, by the authority of its government.”
In spite of all this evidence, noted Calhoun, many clung to the opening expression of the Preamble, “We, the People of the United States,” as proof that the United States was a nation of one people rather than a federal union of sovereign States. This argument, Calhoun pointed out, not only took the terms “people” and “United States” out of context (the latter had historically been used to denote the States “in their confederated character,” and the former had no plural form “even when applied to many communities or states confederated in a common union”), but also overlooked the fact that the original draft of the Preamble enumerated each State, as in the Declaration and Articles, but was revised for reasons of style and propriety – it was uncertain which States, if any, would ratify the Constitution, and thus considered presumptuous to name parties to an instrument to which they might not consent!
Calhoun noted that it was sometimes conceded that the United States was partly federal and partly national. “They admit that the people of the several States form separate, independent, and sovereign communities – and that, to this extent, the Constitution is federal; but beyond this, and to the extent of the delegated powers, regarding them as forming one people or nation, they maintain that the Constitution is national.” Calhoun considered this theory not just as “unreasonable” as the theory that the Constitution was fully national, but “absurd” altogether. Calhoun traced this particular error to the confusion arising from the description of powers that the States had “delegated” to the United States as “granted” or even “surrendered.” The latter expressions implied that the powers had been permanently transferred, but under the Constitution, all powers were “trust powers,” meaning their delegation was conditional and revocable. “It is not, therefore, surprising, that they who do not bear in mind that all powers of government are, with us, trust powers, should conclude that the powers said to be granted and surrendered by the States, are absolutely transferred from them to the government of the United States…or to the people as constituting one nation, and, thence, to infer that the government is national to the extent of the granted powers.”
According to Calhoun, the “clear and decisive authority” of the Tenth Amendment – “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” – reconciled whatever confusion there was between the expressions “granted” and “delegated,” both of which were used in the Constitution. A full appreciation of the Tenth Amendment, explained Calhoun, required an understanding of its history and a detailed analysis of its provisions. The Tenth Amendment, along with the rest of the Bill of Rights, was adapted from the recommendations of the States for the purpose of amending the Constitution’s “defects” and preventing “misconceptions of its meaning.” According to Calhoun, “Its principal object was to prevent the reserved from being drawn within the sphere of the granted powers, by the force of construction – a danger, which, at the time, excited great, and, as experience proved, just apprehension.” The Tenth Amendment, continued Calhoun, was carefully written, its every word full of meaning. By the expression, “the powers not delegated to the United States,” it was implied that powers that were delegated were delegated in a compact – for “United States” historically stood for the States’ “confederated character.” By the expression, “are reserved to the States respectively, or to the people,” it was meant that the reservation applied to the States in their separate capacities, not collectively. The inclusion of “or the people” did not mean that the States and the people were interchangeable terms for a nation of one people. Calhoun noted that there were “two distinct classes” of reserved powers: “those delegated by the people of the several States to their State governments” and “those which they still retain, not having delegated them to either government.” It was the former powers to which the expression “the States respectively” referred, and latter powers to which the expression “or to the people” referred. The Tenth Amendment, therefore, protected the rights reserved by the States and the rights reserved by the people of the States. By substituting the expression “delegated” for “granted,” the Tenth Amendment also clarified the terminology and reduced the possibility of misinterpretation. “Both terms – ‘granted,’ used in the Constitution as it came from its framers, and ‘delegated,’ used in the amendments – evidently refer to the same class of powers; and no reason can be assigned, why the amendment substituted ‘delegated’ in the place of ‘granted,’ but to free it from its ambiguity, and to provide against misconstruction.”
The concept of delegated powers – powers held in trust rather than permanently surrendered – was the key to understanding the Constitution, claimed Calhoun. “Thus regarded, it will be easy to perceive how the people of the several States could grant certain powers to joint, or, as its framers called it, a general government, in trust, to be exercised for their common benefit, without an absolute surrender of them – or without impairing their independence and sovereignty,” explained Calhoun. “Regarding them in the opposite light, as powers absolutely surrendered and irrevocably transferred, inexplicable difficulties present themselves.” One such difficulty was the problem of “divided sovereignty,” by which the States were “partly sovereign and partly not sovereign – sovereign as to the reserved, and not sovereign as to the delegated powers.” This notion of divided sovereignty, however, misunderstood that it was the powers “appertaining to sovereignty” which the States had delegated, not their sovereignty itself. Indeed, sovereignty could not be divided without being destroyed. “Sovereignty is an entire thing,” avowed Calhoun. “To divide, is, to destroy it.”
Having established to his satisfaction that the United States was federal “in contradistinction to a national government,” Calhoun next moved to show that the United States was a “republic” – or “constitutional democracy, in contradistinction to an absolute democracy.” Here, Calhoun began his comparison of the Constitution to the Disquisition.
The United States was commonly mistaken as a government of majority rule – “that numbers are its only element, and a numerical majority its only controlling power…that it is an absolute democracy.” On the contrary, the United States was a government of consensus. “It is, in all aspects in which it can be regarded, preeminently a government of the concurrent majority,” claimed Calhoun, “with an organization, more complex and refined, indeed, but far better calculated to express the sense of the whole (in the only mode by which this can be fully and truly done – to wit, by ascertaining the sense of all its parts), than any government ever formed, ancient or modern.”
To prove that the United States was a concurrent majority rather than an absolute majority, Calhoun demonstrated that numbers played no part in the framing and ratifying of the Constitution. The Congress which called the Convention derived its authority from the Articles, which had been unanimously adopted by the States, not by a majority of the States or of the total population as one mass. The Congress voted as equal States, each receiving a single vote regardless of her size. A “nay” vote from the seven smallest States – with a population of less than one-third of the total – would have blocked the call for a convention and thus aborted the Constitution. As in the Congress, the Convention voted as equal States, each State delegation received a single vote, a majority of States was required to adopt any measure, and the seven smallest States – less than one-third of the total population – could have defeated the Constitution. Once approved, the Constitution was submitted to the Congress for adoption, where the seven smallest States – less than one-third of the total population – could have rejected the Constitution. Once approved by the Congress, the final and toughest test was the ratification of the States. Nine States had to ratify the Constitution in order for it to take effect between the ratifying States, meaning that the four smallest States – with one-eleventh of the total population – could have prevented the ratification of the Constitution. “It thus appears, that the numerical majority of the population, had no agency whatever in the process of forming and adopting the Constitution; and that neither this, nor a majority of the States, constituted an element in its ratification or adoption.” Similar calculations for the amendment process provided an even more “striking” example that the United States was a concurrent majority rather than an absolute majority.
These numbers not only proved that the absolute majority was powerless in the United States, and that it was the concurrent majority that governed, but also further proved that the United States was federal. “The States, throughout, in forming, ratifying, and amending the Constitution, act as equals, without reference to population.” Indeed, it was the federal nature of the United States – the equality of the States in spite of their size – that formed the cornerstone of her concurrent majority.
The States were represented in the United States in their two different capacities, explained Calhoun: their “corporate character” and “federal numbers.” The former signified the States’ status as equal sovereigns in a republic, the latter signified their “representative population.” In the legislature, the two houses of the Congress were organized according to these two capacities. In the Senate, where each State elected two Senators regardless of her population, the States were represented in their corporate character. In the House, where each State elected Representatives according to her population, the States were represented by their federal numbers. Both the Senate and the House required a majority of their members to adopt an act and could veto the acts of the other, meaning that no legislation could be adopted without the “concurring assent” of the States in their corporate character and representative population. Since the executive was not composed of “separate organs,” but rather the “single functionary” of the President, “concurrent action” was impossible. To compensate, the corporate character and representative population of the States were both factors in presidential elections. The representative population of each State determined her number of electors to vote for the President. If the election were a stalemate, however – no candidate receiving the minimum number of electoral votes – then the House, voting by State in their corporate character, chose the President. In the judiciary, the President, the election of whom was determined by the representative population and corporate character of the States, nominated judges, and the Senate, representing the States in their corporate character, confirmed or rejected them. “It thus appears, on a view of the whole, that it was the object of the framers of the Constitution, in organizing the government, to give the two elements, of which it is composed, separate, but concurrent action; and consequently, a veto on each other.”
Because the United States represented its principals, the States, in their “twofold aspect,” it was more democratic rather than less. “Indeed, the necessary effect of the concurrent majority is, to make the government more popular – that is, to require more wills to put it in action, than if any one of the majorities of which it is composed, were its sole element.” Calhoun provided more calculations to prove his claim. If the States composed the legislature in the capacity of their representative population, then the six largest States, with a population of fifty-one percent of the total, could overrule the other twenty-four States and forty-nine percent of the population. If the States composed the legislature in the capacity of their corporate character, then the sixteen smallest States – with a population of twenty-one percent of the total – could overrule the other fourteen States and seventy-nine percent of the population. Since the House and the Senate possessed a “negative” on each other’s acts, however, it was necessary that “a majority of each should concur to pass a bill before it becomes an act.” The minimum concurrent majority was the six largest States in the House and the six largest and ten smallest in the Senate, which amounted to fifty-nine percent of the total population – as opposed to the alternatives of fifty-one percent and twenty-one percent. Thus, concluded Calhoun, the concurrent majority was more democratic than an absolute majority. “From what has been stated, the conclusion follows, irresistibly, that the Constitution and government…rest, throughout, on the principle of a concurrent majority; and that it is, of course, a republic – a constitutional democracy in contradistinction to an absolute democracy.”
Finally finishing his opening proposition “that the government of the United States is a democratic federal republic,” Calhoun noted that the federal government was only one part in the complex American system of government – or of governments, to be precise. Beyond the federal government – the “representative and organ of the States” – were the States themselves, each of which had a “separate government” which was her “exclusive representative and organ…as to all the other reserved powers.” Therefore, a complete understanding of the American republic must encompass “the nature and character of the relation between…the government of the United States and the separate State governments.”
Calhoun explained that the federal government and State governments were each “parts to the whole.” The delegated powers to the federal government and the reserved powers to the States constituted all power, and thus formed “one entire government,” or “one great federal community.” Each was “paramount and supreme within the sphere of their respective powers,” standing as “equals and “coordinate governments.” Calhoun believed that such a system of governments was so grand, original, and sophisticated that it must have been blessed by the Providence of God. “Intelligent, experienced, and patriotic as they were,” Calhoun remarked of the Framers, “they were but builders under its superintending direction.”
Since there was a line between the delegated powers of the federal government and the reserved powers of the States, “to trace the line which divides their respective powers” was Calhoun’s next step. In the delegation of powers, the “leading principle” of the Framers was to delegate only those powers, which could only be or were best-exercised jointly, and to reserve the powers which were best-exercised separately. “The object was not to supersede the separate governments of the States, but to establish a joint supplemental government; in order to do that, which either could not be done at all, or as safely and well done by them, as by a joint government of all.” Basically, the delegated powers concerned foreign and interstate relations: at home, the States are “many,” but abroad, they are “one.” Calhoun agreed that the motto of the United States, “E Pluribus Unum,” which was Latin for, “From Many, One,” was indeed fitting.
With the line drawn between delegated and reserved powers – external relations to the former, internal affairs to the latter – Calhoun next examined and assessed the safeguards provided for these divisions of power. “The next question which offers itself for consideration is, what provisions does the Constitution of the United States, or the system itself, furnish to preserve this, and its other divisions of power? And whether they are sufficient for the purpose?” According to Calhoun, there were four divisions of power in the United States: first and foremost, the division between sovereign States; second, the division between constitution-making and law-making power; third, the division between delegated and reserved power; and fourth the division of power among departments. “These divisions constitute the elements of which the organism of the whole system is formed,” claimed Calhoun. “On their preservation depend its duration and success, and the mighty interests involved in both.”
Working from the least to the greatest, Calhoun began with the division of power among departments. The issue was whether the Constitution provided the departments with the power to check usurpations of its authority by other departments – the “power of self-protection.” Without each department having the power of self-protection, the strongest department would “inevitably absorb and concentrate” the powers of the other departments into itself. Although the Constitution created an “equilibrium of power” between the legislative, executive, and judicial departments, commonly “regarded as independent and irresponsible [i.e. not accountable to any higher authority] bodies,” Calhoun cautioned that the departments were not, in fact, independent and irresponsible. The departments, after all, were representatives of the States in their corporate character and representative population, and if the balance of power were upset between those two majorities, then the balance of power would be upset between the departments as well. “In order, then, to preserve the equilibrium between the departments, it is indispensable to preserve that between the two majorities which have the power to control them, and to which they are all responsible, directly or indirectly,” reasoned Calhoun. “For it is manifest that if this equilibrium, established by the Constitution, be so disturbed, as to give the ascendancy to either, it must disturb…in turn, the equilibrium between the departments themselves.” Calhoun worried that the greatest danger of usurpation came from the President, particularly the manner in which he was elected. Although the President was first chosen in a popular election according to the representative population of the States, or in the event of a stalemate, chosen in the House according to the corporate character to the States, the unofficial practice of parties nominating candidates, by diminishing the total number of presidential candidates, “virtually superseded” the corporate character of the States. Because the representative population of the States in effect elected the President, the most populous sections – the absolute majority – would thus control the President. Given the “great and pervading” power and patronage of the President, the absolute majority would eventually dominate the Congress and the Supreme Court as well. Today, as Calhoun predicted, the President rules Washington, D.C., and by extension, the absolute majority which the United States has become.
Calhoun then moved to the division between delegated and reserved powers. “On the preservation of this peculiar and important division of power, depend the preservation of all the others, and the equilibrium of the entire system,” stated Calhoun. “It cannot be disturbed, without, at the same time, disturbing the whole, with all its parts.” According to Calhoun, the Constitution protected the division between delegated and reserved powers three ways. The first safeguard was “the enumeration and specification of the powers delegated to the United States, and the express reservation to the States of all powers not delegated.” The second safeguard was “imposing such limitations on both governments, and on the States themselves, in their separate character, as were thought best to prevent the abuse of power, or the disturbance of the equilibrium between the two coordinate governments.” The third was that all elected and appointed officials were “bound, by oath or affirmation, to support the Constitution of the United States.” Although these safeguards were “proper and indispensable,” Calhoun added that from the framing and ratifying of the Constitution, they were generally recognized as “insufficient” in and of themselves. Indeed, “No question connected with the formation and adoption of the Constitution of the United States, excited deeper solicitude, or caused more discussion, than this important partition of power.” The controversy over the division of delegated and reserved powers was so wide and deep that it created the first two political parties – “Federal” and “Republican,” the former of which worried that that the reserved powers would overpower the delegated (and hence feared “dissolution”) and the latter of which feared that the delegated powers would overpower the reserved (and hence feared “consolidation”). The Federalists and the Republicans both expected that the federal government and the States would be “antagonistic…ready to seize every opportunity to enlarge their own at the expense of the powers of the other,” and thus relied upon the “reciprocal action and reaction,” not the safeguards of the Constitution alone, “to be sufficient to preserve the equilibrium, and keep each in its respective sphere.”
Time and experience, argued Calhoun, proved the Federalists and Republicans half-right and half-wrong, as should be expected even among the wisest and noblest men in such a bold political experiment. While they were right about the “means” of maintaining the balance of delegated and reserved powers, they were wrong about the “mode” of the danger. Specifically, they seriously underestimated the consequences of transitioning from a confederation into a federation – of replacing a powerless council with a powerful government. Control of the confederation, the council of which was incapable of exercising power without the multilateral cooperation of the States, was not worth fighting over, but control of the federation, with delegated powers that its government could execute unilaterally, was indeed worth fighting over. Thus, rather than struggling to defend their reserved powers against the encroachment of the delegated powers, the States struggled for control over the delegated powers. The conflict was not between the States and the federal government, but between the most populous States and the least populous States – the majority and the minority. These two parties, due mainly to the unequal effect of taxation and expenditures, were slowly but surely concentrating into the two main sections of the Union – the tax-consuming North and the tax-paying South. “When they shall have become so entirely…when the stronger shall concentrate in itself both the majorities which form the elements of the government of the United States…every barrier, which the Constitution, and the organism of the government oppose to one overruling combination of interests, will have been broken down, and the government become as absolute, as would be that of the mere numerical majority,” warned Calhoun. “Unless, indeed, the system itself, shall be found to furnish some means sufficiently powerful to resist this strong tendency, inherent in governments like ours, to absorb and consolidate all power in its own hands.”
According to Calhoun, there was no such means in the Constitution to prevent an absolute majority from consolidating all power under its control. Calhoun reiterated that neither the right of suffrage nor the existence of a written constitution was a sufficient safeguard. Suffrage, after all, was the “instrumentality” by which party combinations were formed. Written constitutions, furthermore, could not enforce their own limitations upon the government, but required adherence to a strict construction of their powers – one which the majority party would inevitably reject in favor of a self-serving liberal construction. The veto power of the President and the Supreme Court’s power of judicial review, although positive checks in many respects, were impotent against the threat of consolidation, since the party which controlled the two majorities of the United States would also control those departments – “and make them all, in the end, the instruments of encroaching on, and absorbing the reserved powers.” The press ranged from useless to dangerous, serving as more of a “party organ and an instrument of party warfare,” than a party check. None of these powers could mount an “effective resistance” to consolidation; they were all “auxiliary means,” at best.
Since the delegated powers in the Constitution did not provide for the protection of the reserved powers from usurpation, such protection must come from another part of the American system of governments – the reserved powers themselves, whether those of the State governments or of the people of the States themselves. “In one, then, or the other of these, or in both, the means of resisting the encroachments of the powers delegated to the United States, on those reserved to the States respectively, or to the people thereof, and thereby to preserve the equilibrium between them, must be found.” Indeed, remarked Calhoun, it was irrational to expect the federal government, vested with delegated powers, to protect the reserved powers of the States – in other words, “to look for protection against danger, to the quarter from which it was apprehended, and from which only it could possibly come.” Because all action was a product of action and reaction, reasoned Calhoun, each division of power must have a “self-protecting power” in order to react against the actions of other divisions and keep them all within their proper spheres – something a “single power” simply could not do. “Hence the political axiom, that there can be no constitution, without a division of power, and no liberty without a constitution,” observed Calhoun. “To this a kindred axiom may be added – that without a division of power there can be no organism; and without the power of self-protection…the stronger will absorb the weaker, and concentrate all power in itself.”
Calhoun’s next task was to determine whether the reserved powers, if fully exercised, were capable of resisting the encroachment of the delegated powers. To Calhoun, the means of remonstrance, resolutions, and requests, although valuable in other situations, were worthless when it came to resisting the usurpations of the federal government. After all, it was constitutions, not appeals to truth, reason, and justice, which restrained the self-interested nature of man and prevented the abuse of power and oppression. According to Calhoun, the only cure for the disease of consolidation was a negative power on the part of the States. “Nothing short of a negative, absolute or in effect, on the part of the government of a State,” avowed Calhoun, “can possibly protect it against the encroachments of the government of the United States, whenever their powers come in conflict.”
Calhoun first proved that a negative power was prescribed by the American system of governments. The United States and the States were both governments, and governments had the right to judge the extent of their powers and enforce their powers within their rightful spheres, but they were also coordinate governments with power divided between them. Thus, neither had the right to enforce their judgment as to the extent of their power upon each other, for that would have contradicted their equality, deprived them of the right to judge the extent of their own powers, upset the general division of power, and ended either in consolidation or dissolution. “An assumption, therefore, which would necessarily lead to the destruction of the whole system in the end, and the substitution of another, of an entirely different character, in its place, must be false.” Although neither the federal government nor the State governments had the “exclusive right” to enforce their powers upon each other, each did indeed have the right to judge the extent of their own powers. When their judgments disagreed, the effect was a “negative on the acts of each,” thus vesting both with the power of self-protection. “Nothing short of this,” claimed Calhoun, “can possibly preserve this important division of power, on which rests the equilibrium of the entire system.”
According to Calhoun, it was clear that the Constitutional Convention and the separate ratification conventions all contemplated “reciprocal action and reaction…between the government of the United States and the separate governments of the several States” as the way in which each would protect the delegated and reserved powers against usurpation. In the Convention, the national party sought to deprive the States of this negative power by vesting their proposed national government with the power to veto the acts of the States. All of these proposals, however, were defeated. “The fact that they were proposed and so urged, proves, conclusively, that it was believed, even by the most distinguished members of the national party, that [the federal government] had no right to enforce its measures against [the States], where they disagreed as to the extent of their respective powers, without some express provision to that effect,” reasoned Calhoun. “While the refusal of the Convention to adopt any such provision, under such circumstances, proves, equally conclusively, that it was opposed to the delegation of such powers to the government, or any of its departments, legislative, executive, or judicial, in any form whatever.”
Nevertheless, noted Calhoun, there were still many who believed that the federal government had the right to enforce its judgment as to the extent of its powers against the States. Yet the clauses to which they clung did not grant this power, and, in fact, placed further limitations upon the delegated powers of the federal government.
The Supremacy Clause was mistakenly cited as proof that federal law was supreme to State law. Calhoun did not deny that U.S. law was indeed supreme to State law – indeed, he admitted that even without the clause the former would still be supreme to the latter – but challenged what was meant by “supreme” and “law.” The supremacy of federal law was not absolute, but limited to the delegated powers. “Beyond these the Constitution is as destitute of authority, and as powerless as a blank piece of paper; and the measures of the government mere acts of assumption.” Furthermore, Calhoun pointed out that the clause itself stated that only laws “made in pursuance of the Constitution” were supreme. Thus, concluded Calhoun, federal and State laws were each supreme within their rightful spheres – a far cry from the claim that federal laws were categorically supreme over State laws. Nevertheless, the gross misconstruction of the Supremacy Clause has proven extremely enduring, and has become the weapon of choice for absolutists in office and on the bench. “We have a supremacy clause in our Constitution,” opines constitutional-law professor Barack Obama. “When federal law is in conflict with state law, federal law wins out.” Such facile statements make a mockery of the Constitution and expose the utter worthlessness of the profession of “constitutional law.”
The Necessary and Proper Clause was often misinterpreted to provide that the means for the execution of the Congress’ delegated powers were entirely discretionary. The meaning of this clause, however, was simple. First, the means must be “necessary,” meaning essential to the execution of a delegated power. Second, the means must be “proper,” meaning that they could not encroach upon the reserved rights of the States. Third, whatever discretionary power did exist was vested solely in the Congress and no other department. “Necessary” and “proper,” therefore, were restrictions upon the exercise of delegated powers, not grants of implied powers.
With no clauses left to which to cling, some simply asserted that because governments must have the right to enforce their judgment as to the extent of their powers, the federal government, by definition, must also have this right. This argument, explained Calhoun, overlooked “the distinction…between single governments, vested with all powers appertaining to government, and coordinate governments, in a system where the powers of government are divided between two or more, as is the case with us.” If it were true that the federal government, as a government, must have the right to enforce its judgment, then it was equally true that the State governments, as governments, must have this right, yet this would lead to force and thus destroy the system altogether. Thus, while neither government had the right of enforcement over the other, both governments retained the right of judgement for themselves, resulting in a “mutual negative” in the event of a disagreement. “The effect of this is, to make each, as against the other, the guardian and protector of the powers allotted to it, and of which it is the organ and representative,” explained Calhoun. “By no other device, could the separate governments of the several States, as the weaker of the two, prevent the government of the United States, as the stronger, from encroaching on that portion of the reserved powers allotted to them, and finally absorbing the whole.”
Calhoun recognized the fear that a negative power would go to extremes in preventing consolidation, enabling “collision and conflict” which would climax in “disunion.” Calhoun admitted that any constitution, by dividing power between the parts of society, created conflict, but insisted that the good of a constitutional government outweighed its evils. “The choice between constitutional and absolute governments, lies between the good and evil incident to each,” explained Calhoun. “If the former be exposed to collision and conflict between its various parts, the latter is exposed to all the oppressions and abuses, ever incident to uncontrolled and irresponsible power, in all its forms.” Calhoun denied, however, that a negative power would lead to dissolution. In fact, by preventing the delegated and reserved powers from encroaching upon each other, the negative power prevented the conflicts which would lead to dissolution, and thus was actually a safeguard against both consolidation and dissolution.
In his inquiry into whether the reserved powers were capable of resisting the usurpations of the delegated powers, Calhoun saved the strongest safeguard for last: State nullification (or “interposition,” as he preferred). According to Calhoun, the States were the “earliest and highest division of power,” originating with the settlement of America into separate and distinct Colonies and maturing into sovereign States with the Declaration of Independence. “In them severally – or to express it more precisely, in the people composing them, regarded as independent and sovereign communities, the ultimate power of the whole system resided, and from them the whole system emanated.” Since, in the American republic, sovereignty belonged to the people, it necessarily belonged to the people of the States, as there was no one American people, but rather the separate and distinct people of each State. Accordingly, it was the people of the States who declared their independence, formed their own State constitutions and governments, ratified the Constitution, and retained the power to alter or abolish their government.
Indeed, as the sovereign power that had brought the Constitution into being, the people of the States were above the Constitution, or as Calhoun put it, “in the relation of superior to subordinate – the creator to the created.” The Constitution, therefore, could not restrict the “sovereign rights” of the people of the States in any way. Although the people of the States were superior to the Constitution as creators over their creation, they were not superior to each other as parties to a compact. “Of all compacts that can exist between independent and sovereign communities, it is the most intimate, solemn, and sacred, whether regarded in reference to the closeness of connection, the importance of the objects to be affected, or to the obligations imposed.” Therefore, the Constitution was “binding between them as a compact, and not on, or over them, as a constitution.”
In their constitutional compact, the people of the States formed a common government to which they delegated limited powers best-executed jointly rather than separately, each obligated to uphold the compact within its rightful sphere. “The people of the several States, in their sovereign capacity, agreed to unite themselves together, in the closest possible connection that could be formed, without merging their respective sovereignties into one common sovereignty – to establish one common government, for certain specific objects, which, regarding the mutual interest and security of each, and of all, they supposed could be more certainly, safely, and effectually promoted by it, than by their several separate governments,” explained Calhoun. “Pledging their faith, in the most solemn manner possible, to support the compact thus formed, by respecting its provisions, obeying all acts of the government made in conformity with them, and preserving it…against all infractions.” The States’ obligation as a party to the constitutional compact was only to uphold the compact within its rightful sphere, or in other words, in the exercise of its rightful powers. “To this extent the restrictions go, noted Calhoun, “but no further.” Indeed, as to the extent of the States’ obligations to the constitutional compact, each party, according to “the nature of contracts” and “universal practice,” retained the right to judge the extent of her obligations. Since this power was neither delegated to the federal government nor prohibited to the people of the States, it remained a reserved power.
The right of a State to judge the extent of her obligations to the compact, however, necessarily included the right to judge whether a particular act of the federal government exceeded the obligations of the compact and the right to interpose her sovereignty against an unconstitutional act. “The right to judge as to the extent of the obligation imposed, necessarily involves the right of pronouncing whether an act of the federal government, or any of its departments, be, or be not, in conformity to the provisions of the constitutional compact; and, if decided to be inconsistent, of pronouncing it to be unauthorized by the Constitution, and, therefore, null, void, and of no effect,” reasoned Calhoun. “If the Constitution be a compact, and the several States, regarded in their sovereign character, be parties to it, all the rest follow as necessary consequences.” To Calhoun, these latter rights of pronouncing an act unconstitutional and unenforceable were the “indispensable” corollaries of the right to judge the extent of her obligations as to the constitutional compact, without which the rest of the reserved powers that the right was meant to protect would be “barren and useless abstractions.”
Calhoun was careful to distinguish between the power of the State negative and the power of State interposition, as each had unique effects and should be used differently. The former was an act of a State government, the latter an act of the people of a State. While a State government, as a mere representative of its sovereign people, could not rightfully enforce its judgment as to the extent of its power against its coordinate, the federal government, the people of a State, as sovereign, could indeed enforce their judgment as to the extent of their power against their subordinate, the federal government. A State negative did not prevent the enforcement of an act which a State judged to be unconstitutional, but publicly protested the act. State interposition, however, did prevent the enforcement of a federal act which the State judged to be unconstitutional. State interposition, therefore, was a “high and delicate” right not to be invoked lightly, but only as a “last resort” in the face of egregious and urgent threats to liberty and security. “Even when, in the opinion of a State…nothing, short of the interposition of her authority, can arrest the danger and preserve the Constitution, they ought to interpose in good faith; not to weaken or destroy the Union, but to uphold and preserve it, by causing the instrument on which it rests, to be observed and respected.”
Despite their differences, the State negative and State interposition were alike in that Calhoun expected either of them, if and when invoked, to appeal to the sovereign parties to the Constitution for a resolution of the dispute through their power of amendment. According to Calhoun, the amendment power was a “modification” of the sovereignty by which the people of the States formed their separate State governments and their common federal government. “Thus the power which, in its simple and absolute form, was the creator, becomes, in its modified form, the preserver of the system.” In the Constitutional Convention, the number of States required for a constitutional amendment was debated, with the national party in favor of an absolute majority and the opposition in favor of unanimity. The Convention rejected both extremes, settling on three-fourths of the States as a balance between the flexibility which constitutions sometimes required as well as the stability which they were required to provide. “While three-fourths furnish a safe proportion against making changes in the Constitution, under the color of amendments, by the dominant portion of the Union, with a view to oppress the weaker for its aggrandizement, the proportion is equally safe, in view of the opposite danger; as it furnishes a sufficient protection against the combination of a few States to prevent the rest from making such amendments as may be necessary to preserve and perfect it.”
In the event that a State ever negatived an unconstitutional federal act, or the people of a State interposed their sovereignty against an unconstitutional federal act, the people of the States, channeling their sovereignty through the amendment power, could resolve the dispute by upholding or overruling the State and amending the Constitution accordingly. “It is, when properly understood, the vis medicatrix of the system – its great repairing and healing power – intended to remedy its disorders, in whatever cause or causes originating; whether in the original errors or defects of the Constitution itself, or the operation of time and change of circumstances, or in conflicts between its parts, including those between the coordinate governments,” explained Calhoun. “In this character, it can amend the Constitution, by modifying its existing provisions – or, in the case of a disputed power, whether it be between the federal government and one of its coordinates, or between the former and an interposing State, by declaring, authoritatively, what is the Constitution.”
If three-fourths of the people of the States amended the Constitution so as to overrule the negative of a State government, then the State would be obligated to defer to their amendment, repeal her negative, and obey the act in question. That was not the case, however, if it was an act of State interposition – an act of the people of a State. In a case of sovereignty against sovereignty, the people of the State would have to decide for themselves whether the amendment upheld the liberty and security of society for which governments, including that of the Constitution, were formed in the first place: “that each and all might enjoy, more perfectly and securely, liberty, peace, tranquility, security from danger, both internal and external, and all other blessings connected with their respective rights and advantages.” If the people of the State decided against the amendment, then they would have no choice but to invoke the same sovereign authority by which they acceded to the Constitution and secede from the United States. “That a State, as a party to the constitutional compact, has the right to secede – acting in the same capacity in which it ratified the Constitution – cannot, with any show of reason, be denied by anyone who regards the Constitution as a compact, if a power be inserted by the amending power, which would radically change the character of the Constitution, or the nature of the system; or if the former should fail to fulfill the ends for which it was established.”
Calhoun concluded that the Constitution did not protect the reserved powers of the States from federal encroachment and that the States must have some power of self-protection – the State negative and State interposition. “I have shown, that the federal government contains, within itself, or in its organization, no provisions, by which, the powers delegated could be prevented from encroaching on the powers reserved to the several States; and that, the only means furnished by the system itself, to resist encroachments, are, the mutual negative between the two coordinate governments, where their acts come into conflict as to the extent of their respective powers; and the interposition of a State in its sovereign character, as a party to the constitutional compact, against an unconstitutional act of the federal government.” While these two safeguards were “sufficient to restrict the action of the federal government to its appropriate sphere,” the amendment power made “ample and safe provision for their correction” in the event of any “dangerous derangements or disorders.”
If these safeguards were not maintained, continued Calhoun, then not only would the Constitution be destroyed, but also the entire American republic. The “dominant combination of States” would liberally construe its powers so as to circumvent the Constitution and rule as an absolute majority, oppressing the minority of States for its own “aggrandizement.” Strict constructionism, however right and reasonable, would become “the subject of ridicule and scorn.” While the federal government consolidated power from the States, each federal department would struggle against one another to consolidate power in itself. In the end, the President, the head of the administration of government who benefited from every usurpation of reserved powers, would use his newfound power to become head of the majority party as well, and thus an absolute ruler – a king in all but name. “Devotion and submission to party and party interest” would replace “fidelity to the Constitution or to the country,” with Congressmen obeying party lines rather than representing their people. Because of the “vast extent and diversity of interests” of the United States, parties would become concentrated in different sections, resulting in the “dominant section” ruling over the “subordinate section” as an empire over a colony. “In this state of things, discontent, alienation, and hostility of feelings would be engendered between the sections; to be followed by discord, disorder, convulsions, and, not improbably a disruption of the system.”
Only the powers of the State negative and State interposition could save the Constitution and the American republic from destruction, warned Calhoun. Other safeguards, such as freedom of speech and the press (supported by suffrage), and the division of power between departments and governments (supported by a written constitution), could delay federal encroachment upon the reserved powers of the States, but without a power of “counteracting resistance,” they would ultimately be “superseded or rendered obsolete.” In addition to preventing the consolidation of power, however, the State negative and State interposition would actually strengthen the “moral power” federal government. This “moral power” would encourage States to make compromises with one another and even sacrifice their own interests for the common good. Indeed, there was no reason to suspect that the States, who had “freely and voluntarily” created the federal government “for the common good of each and all,” would undermine rather than uphold its rightful delegated powers. “If its safekeeping cannot be intrusted to its creators,” remarked Calhoun, “it can be safely placed in the custody of no other hands.”
According to Calhoun, only the full exercise of the delegated and reserved powers could prevent the dissolution or consolidation of the Union and fulfill the hopes of the Founders for a strong, free democratic, federal republic. “It is by thus bringing all the powers of the system into active operation – and only by this means – that its equilibrium can be preserved, and adjusted to the changes, which the enlargement of the Union, and its increase of population or other causes, may require,” concluded Calhoun. “Thus only, can the Union be preserved; the government made permanent; the limits of the country be enlarged; the anticipations of the Founders of the system, as to its future prosperity and greatness, be realized; and the revolutions and calamities, necessarily incident to the theory which would make the federal government the sole and exclusive judge of its powers, be averted.”
Unlike other traditional republicans, such as John Randolph of Roanoke, who became voices in the wilderness even in their own time, Calhoun remained extremely influential throughout the United States and especially the South, a minority section where his argument for consensus rule over majority rule was most resonant. When South Carolina finally convened in Charleston to secede from the Union – a course of action which Calhoun would have found bittersweet – Calhoun presided from beyond the grave. The convention president, David F. Jamison, opened the proceedings with a speech on December 17, 1860. “Gentlemen, we have met here under circumstances more solemn than any of us have ever been placed in before,” began Jamison. “It is no less than our fixed determination to throw off a government to which we have been accustomed, and to provide new safeguards for our future.” There was no hope of reunion with the North, avowed Jamison. “What guarantees can they offer us, more strictly guarded or under higher sanctions, than the present written compact between us?” he asked. Indeed, the Constitution had failed to safeguard the liberty and security of South Carolina from the North’s “jealousy and aggressions” in excluding her from the common Territory, “cupidity” in burdening her with the bulk of the taxes, and “crusade” of hatred and fear against her citizens and institutions. Without concurrence between all of the parts of society, constitutions were mere “paper securities,” asserted Jamison. “Written constitutions are worthless unless they are written at the same time in the hearts, and founded on the interests of a people – and as there is no common bond of sympathy or interest between the North and the South, all efforts to preserve this Union will not only be fruitless but fatal to the less numerous section.” On general principles (the impotence of written constitutions without a power of resistance, the necessity of a concurrent majority to unite all of the parts of society, and the plight of the minority under an absolute majority) and specific issues (the Territories, economics, and abolitionism), Jamison’s speech was steeped in the philosophy and history of the Disquisition and Discourse and was a testament to the enduring power of Calhoun’s political philosophy. Indeed, down the street from the convention hall hung a banner of Calhoun holding the broken tablets of “Truth, Justice, and the Constitution,” with the caption, “Behold Its Fate.”
To Calhoun, the American republic was the embodiment of his theory of the concurrent majority. In a concurrent majority, each part of society had a voice in the formation of the government’s acts and the power of self-protection against the execution of oppressive acts. Through the representation of the two capacities of the States – their equality and their population – in the federal government, each of the parts of the United States had a concurrent voice in the formation of its acts. Through the rights of the States – derived from the coordinate relation of the State governments to the federal government and the sovereignty of the States over the whole – each of the parts of the United States had the power of self-protection against the execution of oppressive acts. Although the United States was framed as a concurrent majority, Calhoun despaired that its original character had not been preserved. From an excessive reliance on suffrage and written constitutions, rather than the vigorous assertion of the States’ reserved powers of the negative and interposition, the United States had become an absolute majority of the tax-consuming Northern States over the tax-paying Southern States, the former section a menace to the security and liberty of the latter section. To restore concurrence in the United States, Calhoun proposed a return to the federal system of governments – in which the States delegated limited powers to a common government and reserved the rest for themselves – as well as additional reforms to protect the minority section and strengthen the whole. Instead, following Calhoun’s death, the centralization of power and the sectionalization of politics which he deplored intensified, and the tension between consolidation and dissolution which he feared finally erupted, resulting in the bloodiest war in American history – a revolution which crushed the South, destroyed States’ rights, and transformed the concurrent republic into an absolute nation. Like the statue erected in his honour in Charleston, everything in which Calhoun believed was toppled and smashed by the Yankee invaders.