The fifth 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.
You will be pleased to bear in mind, sir, that I have endeavoured, in my preceding letters, simply to prove, that the doctrine of Nullification is fully warranted by the Virginia Resolutions, of 1798. If I have not succeeded in this, I have at least shown that it is not so manifest a departure from those resolutions, as to warrant the denunciation which it has received from the professed friends of State Rights. Still less warrant is there, for branding a whole State with treason, for adopting it. And now, sir, permit me to remark, that Nullification is not a distinct and substantive principle at all, but merely a mode in which well settled principles are carried out in practice. It is absolutely necessary to bear this distinction in mind. The only principle involved in Nullification, is the right of a State to decide whether an act of Congress is a breach of the compact or not; and if it shall decide that it is a breach, to interpose without waiting for the co-operation of other States, for “arresting the progress of the evil,” in such mode as not to break the Union, nor interrupt the regular progress of the Government within the Constitution. No one, I think, can deny the correctness of this principle. Nullification professes to conform to it, whilst Secession obviously disclaims it; because Secession necessarily breaks the Union. You will at once perceive, then, that there are a countless number of modes in which the principles of Nullification may be carried out, and it by no means follows that the doctrine itself is false, because it may be abused in practice. Let us, then, forget, for the present, South Carolina and all her proceedings, and test the correctness of Nullification by a hypothetical case. Suppose that the present Congress should declare, by law, that the slave-holding States shall no longer be entitled to representation in that body, for three-fifths of their slaves. The case is at least possible, be assured, and it would be so “palpable and dangerous” an assumption of power, as to call loudly for the most effective mode of “State interposition,” warranted by the Virginia resolutions. How would you have us proceed? Would you appeal to the Federal Judiciary to say whether such a law was constitutional or not? I cannot perceive how it is possible to bring the case before them; and even if it could be brought there, it would be at least a year before it could be decided. In the mean time, Virginia would be deprived of about one-sixth part of her proper representation, and would continue to be so deprived until the Supreme Court might choose to take up the case. She would thus be thrown on the mercy of that tribunal, for one of her clearest and most important rights.—Besides, this would assuredly be directly in the teeth of Madison’s Report, which reprobates the idea that the Supreme Court has any rightful power over such a question. Would you appeal to Congress to repeal the law? This Congress ceases to exist on the 4th of March, and our elections take place in April. There might not, then, be any Congress in session, to whom the appeal could be made; and even if there were, what hope could you have that the same men who showed themselves capable of such a palpable usurpation would immediately disavow it? Besides, this would be recognizing the right of Congress to decide on the extent of its own powers, which is clearly against Madison’s resolutions. But suppose that the appeal should be actually made, and that Congress should refuse to repeal the law—would you submit? The President’s doctrines would force you to do so. Yet I cannot think that you would agree to such doctrines in a case involving the rights of your own State, although you advocate them in the case of South Carolina. No, sir, you would not submit. Then, what would you do? Would you agree to suspend the exercise of the essential right of representation until you had tried the slow process of an appeal to the other States, in their separate characters? You would be ashamed to countenance such a poor spirited surrender of the right of self-protection. Would you resort to arms?—Upon whom would you make war? Upon Congress alone, or upon all the other States? Not upon Congress, the actual wrong doers, for that would be ridiculous—not upon the other States, because they might not sanction the usurpation of their Federal agent, and therefore, might not be guilty of any intentional wrong. Would you secede? And if you did, how would that redress the wrong, and restore you to your rights? Besides, sir, there would be in secession, a positive injustice to the other States. Each State is entitled to all the benefit which it can derive from the Union of all, and of course the withdrawal of any one State deprives the other States of all the benefit which they would derive from the presence of such state in the Union. There is no doubt of the right of a State to withdraw, and we shall presently see when and how that right may be exerted. But for a State to resort to Secession, as a primary means of redressing a wrong, done by the usurpations of the other States, not only defeats its own object, but does injustice to the other States. Moreover, it ipso facto breaks the Union, and, therefore, is clearly, as I have before shown, not within the letter or spirit of the Virginia Resolutions. You would not adopt any of these modes, and I will now show you how you would proceed. You would begin by declaring the law unconstitutional, and, therefore, not obligatory. In other words, sir, you would nullify the law. Of course, you would stand precisely as you did before the law was passed, and therefore, you would not consider yourself as out of the Union, merely by this act of usurpation on the part of the Federal Government. You would proceed to elect your Representatives in Congress as heretofore, and direct them to take their seats in that body. If they were allowed to do so, the law would be thus virtually repealed, and all the wrong redressed. If they were not allowed to do so, you would still feel under no obligation to surrender your share in the Union; but you would appeal to the other States to say whether they would sanction this usurpation on the part of their common agent or not. If the other States should refuse to sanction the usurpation, you would be thus restored to your rights. Otherwise, you would determine for yourself, whether it would be best for you to remain in the Union, with the loss of part of your rights, or go out of the Union altogether. Now, sir, all these primary steps are, as you must in candour admit, precisely and strictly Nullification; but they are Nullification on a proper occasion, and asserted in a proper mode. There is not a State Rights man on earth, who can object to it as thus applied, as applied to such a case; and of course, as a doctrine, it is not wrong. Nullification and Secession are both rights; and the difference between them is simply this: Nullification proposes to preserve the Constitution, by annulling every act of the Federal Government, which the Constitution does not authorize; it proposes to preserve the Union, by annulling those usurpations in some mode which shall not withdraw the State from the Union, nor embarrass the regular action of the Government within the Constitution. Secession withdraws the State out of the reach of the usurped powers, when all other means of redress have failed. Nullification, therefore, is the primary right and the primary duty of the State; Secession is the ultimate right, when Nullification has failed.
This, sir, is Nullification, as I understand it, and as it is undoubtedly contemplated in the Resolutions of 1798. I should be glad to know what objection you can urge against it. Permit me now to examine its practical results, and to compare them with those of the opposite doctrine, as contended for by the President.
It is perfectly true, as the President contends, that if a State may declare one law to be unconstitutional, it may declare any and every other law to be so; and by the same rule, each State may, in the exercise of the same right, select a particular law or laws as unconstitutional, and thus utterly destroy the uniform operation of the system. But while this is certainly possible, it is in no degree probable, and cannot possibly occur, except in such a state of public feeling in regard to the Union, as would at all events, dissolve it by other means. If the States no longer wish to remain in Union, they will of course separate. But if they are really desirous to preserve the Union, their own interest affords a sufficient pledge that they will not endanger it by throwing themselves upon their reserved rights, except in extreme cases, which require it. If one State or two States, should be mad enough to do so, it cannot be imagined that such a number of them will do so as to afford any ground for the President’s fears, or any application for the argument which he derives from them. The Government of the United States, is the mere agent of the States, for specified purposes, and it is inconceivable that the States who appointed that agent for their own use and advantage, would without cause, so embarrass its action, as to render its agency of no value. In practice therefore, this argument of the President is not entitled to any consideration. And even if it were otherwise, is it more consistent with principle, that the agent should control the constituent, or that the constituent should control the agent? These view of the subject, however, are worth nothing. We cannot judge of the practical operation of the Government, by any such extreme case. Human sagacity cannot foresee, nor human prudence provide for all possible contingencies; nor can human language define and limit every possible modification of social rights. Although Governments are primarily founded in distrust, yet there is, of necessity, some degree of confidence in all of them. The wisest statesmen can do no more than repose that confidence in the safest hands, while at the same time, he surrounds it with all practicable guards against abuse. If the States may abuse their reserved rights in the manner contemplated by the President, the Federal Government, on the other hand, may abuse its delegated rights. There is danger from both sides, and as we are compelled to confide in the one or the other, we have only to inquire, which is most worthy of our confidence. In the first place, as I have already remarked, the States cannot have any interest to abuse their reserved rights. Besides, the right for which they contend, is not a right of action at all, but merely a right to check unauthorised action, in the other party. The abuse of this right can be found in nothing but in the interposition of the State to check its own agent, in doing what it expressly authorized its own agent to do, for its own advantage. The right itself is indispensible to self-preservation, while the abuse of it is not to be contemplated as sufficiently probable, to found any argument against the right itself. On the other hand, the Federal government has a direct interest to enlarge its own powers, by encroaching on the rights of the States. The constituent can rarely, if ever, have an interest in contracting the powers of his agent, but prima facie, the agent always has an interest in making them greater. And when we reflect on the strong love which most men feel, for patronage and power, the influence of this interest upon the mere men who wield the Federal Government, (and who as to this argument, must be identified with it) affords much cause for distrust and fear. It is therefore much more probable that the Federal Government will abuse its power, than that the States will abuse theirs. And if we suppose a case of actual abuse on either hand, it will not be difficult to decide which is the greater evil. If a State should abuse its right of interposition by arresting the operation of a constitutional law, the worst that could come of it would be, to suspend the operation of the law for a time, as to that State, while it would have all its effects within the other States. This would certainly be unjust, but in most cases, would be attended with very little practical evil. In some cases, it is true, the consequences might be serious, such for instance, as might arise in a time of war; but it is precisely in such cases that the State would have the least motive for coming into collision with her sister States. Besides, according to the doctrine for which I am contending, this evil would be temporary only; it must cease in some way or other as soon as the other States act upon the subject. I acknowledge however, that it is at best an evil, but it is an evil inseparable from our system, and one which cannot be avoided except by submitting to a greater evil. It is perfectly evident that this right must exist in the States unless it be incompatible with the rights of the Federal Government. Supposing this incompatibility to exist, there must be a right in that Government to control the States in this respect, and to enforce a law which the States may have pronounced to be unconstitutional. Let us now suppose an abuse of this right. It would consist in an attempt by the Federal Government to coerce obedience to an unconstitutional law.—This, sir, it seems to me, is despotism in its very essence. If the Federal Government may enforce one unconstitutional law, it may enforce every unconstitutional law, and thus all the rights of the States and the people may fall one by one, before the omnipotence of that Government. This consequence is too manifest to escape even the most superficial observation. The worst possible result of nullification, even in the opinion of its bitterest opponents, is to dissolve the Union—and this result does not legitimately flow from it; while the alternative which they propose, establishes an absolute despotism, which not only dissolves the Union, but establishes the worst possible form of government upon its ruins. Thus it appears that nullification is much less apt to be abused, than the alternate remedy, and when abused, its consequences are infinitely less to be deprecated. Of the two evils, I choose the least. I prefer the remedy, which, although in its extreme abuse, it may lead to disunion, may be peaceful in its results, to one which necessarily dissolves the Union, and whose direct object and tendency are to violence and blood, and absolute power.
And now Sir, you have a full view of nullification as I understand it. As I sincerely desire to be right in politics, as well as in morals and religion, I submit myself with all deference, to the correction of your greater wisdom. At all events, you ought to relieve your own principles from the cloud which now hangs over them, and renders them somewhat obscure to the general vision. In my next letter, I shall say something to you in reference to South Carolina.