Saturday, March 14, 2009

"If the 25th section did not exist . . each government would have a negative on the other"

Well, in my last post I was right on both counts.

First, the Report issued by the House Judiciary Committee on January 24, 1831 recommending repeal of Section 25 of the Judiciary Act of 1789 was delivered by Rep. Warren Ransom Davis of South Carolina.

Second, David P. Currie makes clear that the attempt to repeal Section 25 had everything to do with nullification. As early as 1827, John C. Calhoun had observed that repeal of Section 25 would effectively provide the states with the ability to "negative" federal law:
If the appellate power from the State courts to the U[nited] States court provided for by the 25th sec[tio]n [of the Judiciary Act] did not exist, the practical consequence would be, that each government would have a negative on the other, and thus possess the most effectual remedy, that can be conceived against encroachment.

Rep. Davis was a Nullifier. Moreover, Prof. Currie cites to this January 15, 1831 letter from Calhoun to James Henry Hammond as evidence of "Calhoun's complicity in the project" to repeal Section 25:
In the mean time, much can, and, I hope, will be done here by our members to bring out, in bold relief, all of the circumstances calculated to demonstrate our hopeless condition. With this view among other subjects, I trust, there will be a full discussion of the true nature and character of that most oppressive, most unjust, unconstitutional and dangerous of all projects, the distribution of the surplus revenue. The resolution of Mr Davis will also lead to a very interesting discussion. The Committee will report in favour of a repeal of the 25th Section of the Judiciary act, and, it is thought by many, the report will pass the House. However strange it may seem, there are many Zealously in favour of the repeal, who are violently opposed to what they call Nullification, as if the repeal did not comprehend, and go beyond Nullification. The discussion of the report on the repeal will doubtless strengthen our doctrines, as the occurence in Georgia has done.

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