The third of six essays written by Judge Abel P. Upshur.
A series of Essays, addressed to Thomas Ritchie, by a distinguished citizen of Virginia, under the signature of “Locke,” in February, 1833.TO THOMAS RITCHIE, Esq.
I am now to prove to you, sir, that Nullification is the only mode in which the usurpations of the Federal Government may be resisted by the States, in accordance with the principles of our resolutions of 1798. Daring as you may consider this enterprise, I do not enter upon it with any fear, although I approach without flourish of trumpets or any other parade. I am a plain, practical man, and desire to state my opinions in a matter which other plain, practical men will understand. If such men are not the ornaments of the country, they are at least its strength and support, and the very people to whose capacity all reasoning upon political subjects ought to be addressed.
I beg you to bear in mind the principles which have already been stated as deducible from the resolutions of 1798. Perhaps our best course of proceeding will be to state them in detail, and see whether nullification does or does not conform to every one of them.
1. The resolutions assert that there is some mode within the Constitution by which the usurpations of the Federal Government may be resisted by the States. Now, it is true that nullification is denied to be a constitutional remedy, but the nullifiers assert that it is constitutional; and I mention the point only to show that they do not intend to assert any extra-constitutional or revolutionary remedy—and that so far, at least, they are within the resolutions of 1798. Whether their remedy is constitutional or not, supposing the principles of the resolutions to be so, must depend on its conformity with those principles in the subsequent propositions. We remark, therefore, that
2. The remedy must be such as to “arrest the progress of the evil.”—Now, be pleased to bear in mind, that nullification does not proceed upon any supposed right of the State to repeal a constitutional law, but upon the right of a State to declare that an unconstitutional law really is so, and to refuse obedience to it for that reason. I beg you to bear this distinction in mind. If nullification proposes any thing more or less than this, I am no nullifier, and do not understand the doctrine. Now, sir, is not this right of a State (to decide on the constitutionality of an act of Congress) distinctly asserted in the resolutions of 1798? Nay, has not Virginia asserted it in practice, both in regard to the Alien and Sedition Laws, and in regard to these very Tariff Laws themselves? We all know that such is the fact. And was not resistance to such unconstitutional laws distinctly contemplated in the resolutions of 1798? I have already shown that it was; and if any farther proof is necessary, it will be found, in all abundance, in the address to the people which accompanied those resolutions. It appears, then, that the principles upon which nullification proceeds, are (in the abstract) in strict conformity with those of the resolutions of 1798. But those principles, it is admitted, must be limited and qualified by the object in view. We are, then, to inquire whether nullification does, or does not, “arrest the progress of the evil.” The evil is the exercise of an usurped power: nullification declares that the usurped power shall no longer be obeyed. Is not this the best of all possible modes, if not the only mode in which it can be “arrested?” Perhaps it is not too great a refinement to say, that the “arrest” here contemplated, is of the usurpation only, and not of the usurping power. In other words, it is not designed to put down the Federal Government—nor embarrass nor impede its legitimate operation; but simply to prevent it from exercising a power which does not belong to it.—Hence, no resort is contemplated in the resolutions of 1798 to any measures which may submit the existence of that Government to the decision of arms. Its operations within the Constitution must all go on as before, whilst its operations beyond the Constitution must be “arrested.” Now, this is precisely and peculiarly the effect of nullification. And, strange to tell, it is on this very ground that you and others have most strongly assailed that doctrine. You all say, that it is absurd to pretend that a State can be in the Union and out of the Union at the same time; and that it is monstrous in a State to contend for all the advantages of the Union, as to certain laws, while she refuses to submit to the burthens imposed by other laws. Nothing in nature can be more perfectly self-evident than all this. It is not surprising that a man of General Jackson’s measure of intellect and information should be deceived by such a superficial view of the subject: but we had a right to expect better things from a veteran in politics, like yourself. Remember, sir, that a law beyond the Constitution is no law at all, and there is no right any where to enforce it. A State which refuses to submit to such a pretended law, is strictly within the Union—because she is in strict obedience to the Constitution; and it is strange to say that she “refuses to submit to the burthens” imposed by any law which is not law at all. Here, then, you have a picture of Nullification. It secures to the State the right to remain in the Union, and to enjoy all the advantages which the Constitution and laws can afford—submitting, at the same time, to all which that Constitution and laws rightfully enjoin; while it “arrests the progress” of usurped power, by destroying the obligation of every pretended law which the Constitution does not authorise, and which, therefore, is not law. If this is not the meaning of the resolutions of 1798, I have much misunderstood them. It is precisely upon this point that the public mind of Virginia has been most strangely misled by the authority of the President’s name, and the speciousness of your paragraphs.—You owe the people a heavy debt of reparation, which I hope you will live to pay.
This leads us to the second object of the resolutions of 1798, which is “to maintain within the limits of the respective States, the authorities, rights and liberties appertaining to them.” I have already shown, in my second letter, that these authorities, rights, and liberties are not merely those which belong to every sovereign State, and which may be enjoyed as well in a state of separation as in league with others, but also all the authorities, rights, and liberties which the States are entitled to, under the Constitution, and as members of the Union. No State, therefore, can possibly effect this object of the resolutions of 1798, by any proceeding which either withdraws her from the Union, or weakens her just influence in it.
The remarks offered under the preceding head, apply with equal force and propriety to this. You and the President both say, that it is arrogance and presumption in a state to insist on retaining her place and influence in the Union, while she refuses to submit to a part of its laws. Admitting, again, that this is perfectly true, but re-asserting that it cannot apply to the refusal of a State to submit to what is not law, I have to ask you how it is possible for a State to “maintain her authorities, rights, and liberties,” except by the check which she may apply as a State, and as a member of the United States, to the usurpations of the Federal Government, or by an appeal to arms? I pray you, sir, to enlighten my understanding upon this subject. If you cannot show me some other mode of proceeding, I take it for granted that no one else can. At all events, until it shall be done by some one or other, I shall be compelled to continue in my present heresy. If it was the meaning and object of the resolutions of 1798, that the States had the right, and were in duty bound, to resist the usurpations of the Federal Government, by some means, which at the same time that it arrested the evil, should preserve the Union unbroken, I must be permitted to think that Nullification, if it does not attain these objects completely, comes much nearer to it than any other proceeding which has yet been proposed. I know, sir, that you, and hundreds of others, have said that the resolutions of 1798 have been misunderstood. Perhaps so. It is true their language has appeared to me, and to others like me, to be extremely plain—and it is our own construction of it alone which has formed our principles. Yet it is possible that it may hide some meaning deeper than we have been able to penetrate. I pray you to tell us what it is. Do not content yourself with the theory only, but let us know the precise extent of our rights, and the precise mode in which they may be constitutionally asserted, according to the resolutions of 1798.
It has not escaped my attention, that, according to those resolutions, the State interposition which they contemplate is not authorised, except in cases of “deliberate, palpable, and dangerous exercise of powers not granted.” It will be obvious, however, to intellects less clear than your own, that this does not affect, in any degree, the principle upon which State resistance is justified, nor even the mode in which it may be exerted. It merely points out the proper occasion for the application of the principle. And it will be sufficient here to remark, that according to your own theory, which in this respect agrees with the resolutions, each State is the exclusive judge for itself, whether the usurpation is deliberate, palpable, and dangerous, or not. It follows, of course, that no objection to Nullification can be derived from this view of the subject.
I have now, sir, to present to you a dilemma, connected with this part of our inquiries, and to ask you in what manner you propose to escape its horns?
South Carolina says that an unconstitutional law is void, and so say the Virginia Resolutions—South Carolina says that each State has a right to decide for itself whether a law is constitutional or not, and so say the Virginia Resolutions—South Carolina, in the exercise of this right, has declared that the Tariff Laws are unconstitutional and so say the Virginia Resolutions of 1828 and 1829 (I have forgotten the date) and so, Mr. Ritchie, say you. How, then, can you countenance the President, in subjecting the citizens of South Carolina to the sword, for not submitting to what you yourself believe to be a sheer usurpation on the part of the Federal Government? Do, sir, in pity to our oppressed spirits, answer this question. You will not answer it, sir—because you cannot answer it without convicting yourself of inconsistency. This I will prove—for I do not mean to allow you any refuge from this dilemma. South Carolina is either right in her proceedings, (principles and all,) or else she is wrong. If she is right, then, there can be no pretence whatever for making war upon her: if she is wrong, how does that fact appear? It is admitted that the other States, co-parties with her to the Constitution have not said so.—Congress alone, and the President, or rather the Federal Government, has said it. Do you, sir, acknowledge any such right in the Federal Government? Is it not perfectly clear, that if such right exists the Federal Government is an appellate tribunal, with power to decide, in the last resort, upon the constitutionality of its own acts? Of what avail is the right of a State to pronounce that an unconstitutional act of Congress is really so, if Congress may overrule that decision? Is not this, sir, the very essence of that consolidation against which the Virginia Resolutions, Madison’s Report, and your own valuable labours, have so long contended? It is impossible, then, for you to justify Congress and the President, except by asserting, either that Congress may overrule the decision of South Carolina, upon a question touching their own powers, and, by the same rule, may overrule the decision of every other State, and thus become the sole judges of the extent of their own powers; or by asserting that they may constitutionally enforce an unconstitutional law. Can you, sir, escape this difficulty, without abandoning every principle for which you have professed to contend for thirty years? I am exceedingly anxious to know in what manner you will do it. For myself, I can discover but one possible loop-hole of retreat, and even that I will endeavour to close upon you.—I reserve this, however, for a succeeding letter.