Tuesday, March 17, 2009

"A few striking examples"

When he left him this morning, James Buchanan was asserting that, if Section 25 of the Judiciary Act of 1789 were repealed, federal laws “would thus be entirely annulled.” He proceeded to give “a few striking examples” – hypotheticals that illustrated the point.

His first example took aim directly at South Carolina, the tariff and nullification:
Suppose the Legislature of one of the States, believing the tariff laws to be unconstitutional, should determine that they ought not to be executed within its limits. They accordingly pass a law, imposing the severest penalties upon the collector and other custom-house officers of the United States within their territory, if they should collect the duties on the importation of foreign merchandise. The collector proceeds to discharge the duties of his office under the laws of the United States, and he is condemned and punished before a State court for violating this State law.

Repeal of Section 25, Buchanan asserted, would allow the unnamed state to “nullify” the tariff:
Repeal this section, and the decision of the State court [convicting the collector] would be final and conclusive; and any State could thus nullify any act of Congress which she deemed to be unconstitutional.

Such a result would be disastrous, for the choices would be dissolution or war:
If no such appeal [to the Supreme Court] existed, then, upon the occurrence of cases of this character, the General Government would be compelled to determine whether the Union should be dissolved, or whether there should be a recurrence to force – an awful alternative, which we trust may never be presented. We will not attempt further to portray the evils which might result from the abandonment of the present judicial system. They will strike every reflecting mind.

Thirty years later, then President Buchanan confronted a similar choice between dissolution or war. As I have discussed in the past, he regrettably took the position that, although secession was unauthorized, the federal government lacked the power under the Constitution to employ (in his earlier words) “a recurrence to force” to prevent it.

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