In my most recent post on the New York Report on Nullification, written by Martin Van Buren, I ended with the vice president-elect turning to address “the claim which is advanced, that a single State has a right to withdraw herself, against the wishes of her co-States, from the Union, whenever, in her sole judgment, the acts of the Federal Government shall be such as to justify the step.”
Van Buren pulled no punches as to his conclusion:
The Committee cannot approve this doctrine. Anxious as they are to sustain the sovereignty of the States in its full force, they do not feel it to be less their duty to "preserve," in the language of Mr. Jefferson, "the General Government, in its whole constitutional vigor." There is no conflict of duty between these sentiments; so far from it, that, in the opinion of the Committee, no man can be a good citizen, who is disloyal to either. No apprehension too alarming, can be entertained as to the injurious consequences which may result from the principles attempted to be established.
The structure of Van Buren's discussion of the reasoning that supported this conclusion may frustrate the logician, but its political appeal is undeniable. Advocates of nullification and secession inevitably pointed first to the Kentucky and Virginia Resolutions of 1798-1799, authored by Thomas Jefferson and James Madison respectively. The Resolves, advocates asserted, demonstrated that these revered founders were the source of their doctrines.
Van Buren the politician understood that it was essential at the outset to cut this link and destroy the connection. The Resolves, properly understood, neither advocated State nullification nor supported single-state secession. He therefore began his argument with a lengthy analysis of the Resolutions.
The somewhat tortuous nature of Van Buren's discussion suggests that he had no easy task. Entire books have been written analyzing the Resolutions, and I do not propose to do so here, nor even to describe in detail Van Buren's exegesis of the texts. In outline, however, Van Buren placed principal reliance on the Report of 1800, drafted by Madison and adopted by the Virginia legislature in January of that year.
The Report of 1800, Van Buren asserted, demonstrated that Kentucky and Virginia Resolutions did not advocate nullification or secession. Statements in the Resolutions declaring federal laws unconstitutional were mere “expressions of opinion, unaccompanied with other effect than what they may produce on opinion by exciting reflection.”
Likewise, statements in the Resolutions urging other States to adopt “necessary and proper measures” to “maintain[] unimpaired the authorities, rights, and liberties reserved in the States respectively, or to the people” were not invitations to refuse to execute federal laws. “Far, very far from it.” As John Taylor of Caroline, a member of the Virginia committee that produced the Report of 1800 and a leading Old Republican, explained in debates over the Report, these statements were simply references to the amendment process contained in Article Five of the Constitution, which gave the States the right to call a constitutional convention if Congress rebuffed their pleas:
In reply to these predictions [that the Resolutions advocated nullification and were “the harbinger of civil commotion"], he [John Taylor of Caroline] said, "Suppose a clashing of opinion should exist between Congress and the States, respecting the true limits of the constitutional territories, it was easy to see that if the right of decision had been vested in either party, that party deciding in the spirit and interest of party, would inevitably have swallowed up the other. The Constitution must not only have foreseen the possibility of such a clashing, but also the consequence of a preference on either side as to its construction; and out of this foresight must have arisen the fifth article, by which two-thirds of Congress may call upon the States for an explanation of any such controversy as the present, by way of amendment to the Constitution, and thus correct an erroneous construction of its own acts, by a minority of the States; whilst two-thirds of the States are also allowed to compel Congress to call a convention, in case so many should think an amendment necessary, for the purpose of checking the unconstitutional acts of that body. Thus, so far as Congress may have power, it might exert it to check the usurpations of a State, and so far as the States may possess it, an union of two-thirds in one opinion might effectually check the usurpations of Congress. And under this article of the Constitution, the incontrovertible principle before stated might become practically useful, otherwise no remedy did exist for the only case which could possibly destroy the Constitution, namely, an encroachment by Congress or the States upon the rights of the other.
In short, Van Buren argued, the Resolutions advocated, not nullification or secession, but appeal to the amendment process. “Such was the understanding of the import and the intent of the resolutions by him who introduced them; by those who supported them; by the Committee to which they were at a subsequent session referred; and by the Legislature which adopted their exposition.”
Having established this conceptual framework, Van Buren tackled his thorniest problem. Neither the Kentucky nor the Virginia Resolutions as promulgated by those states' legislatures used the word “nullification.” After Jefferson's death in 1826, however, a draft of the Kentucky Resolutions was found among his papers. That draft did contain the toxic term:
8th. Resolved, . . . that in cases of an abuse of the delegated powers, the members of the general government being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy; that every state has a natural right in cases not within the compact (casus non foederis) to nullify of their own authority all assumptions of power by others within their limits; that, without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them . . ..
(In Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy, William J. Watkins, Jr. explains that John Breckinridge [the grandfather of the John C. Breckinridge known to Civil War era history buffs], who received the draft indirectly from Jefferson, “struck the term 'nullification”' from the Kentucky Resolutions,” presumably “to aid [their] passage.”)
Carolinian nullifiers and their allies, as you might expect, pounded on this revelation as proof that Jefferson and the Resolves embraced their position, and that they were expounding the true meaning of the Constitution. It was to this argument that Van Buren next turned.
Van Buren led with several subsidiary arguments. First, even assuming that the language of the “unpromulgated draft” represented Jefferson's considered judgment at the time, nullification was not the remedy for “the revenue laws” the Carolinians were complaining about, which represented at most “an abuse of delegated power,” not “a subject upon which [Congress's] action is expressly inhibited, or upon which [Congress] had no authority to legislate at all”:
The Committee are well aware that the advocates of nullification have attempted to sustain that doctrine by expressions contained in an unpromulgated draft of the Kentucky resolutions found among his papers, in which is set forth the right of a State to nullify an act of Congress, passed in respect to a subject upon which its action is expressly inhibited, or upon which it had no authority to legislate at all. A suggestion which, if it were possible to make a paper so circumstanced whenever it may be found, the basis of so solemn an act, is clearly inapplicable to the case under consideration, inasmuch as it expressly declares, that for "an abuse of delegated power," (the most that could by possibility be made of the revenue laws) "the members of the General Government being chosen by the people, a change by the people would be the Constitutional remedy."
At all events, Van Buren maintained, Jefferson's later writings made clear that he did not endorse single-state nullification or secession. Citing correspondence from 1811 and 1812, Van Buren asserted that “the published writings of that great man are replete with the evidences of his avowed opinions, inconsistent with the supposition that he believed in the right of a single State either to make constitutional resistance to the laws of the United States or to dissolve the Union by withdrawing herself from it, when in her sole judgment, the circumstances were sufficient to justify the act.”
Following these preliminary observations, Van Buren moved to his principal argument. If Jefferson did not believe in single-state nullification, what, then, was he getting at when he used that term in his draft? He was not referring to a constitutional remedy, but rather to the extra-constitutional right of all people to “redress intolerable grievances” by re-assuming the powers of government through revolution. Van Buren's point seems to me to be well taken and is worth quoting in full. I have added a paragraph break to make the prose more readable:
Let it not, however, be supposed that the Committee are the advocates of unconditional submission. Such are not their views. They concur fully in the sentiment, "that the authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind." Or, in the language of our own State, "that the powers of Government may be re-assumed by the people, whenever it shall become necessary to their happiness." In respect to State governments, this control can be constitutionally exercised by a bare majority of the people; and in the Federal Government, by a specified number of the States.
But this is not the only mode by which the people can redress intolerable grievances. There is another, which cannot be better described than has been done by Mr. Madison. "And in the event (says he) of the failure of every constitutional resort, and an accumulation of usurpations and abuses, rendering passive obedience and non-resistance a greater evil than resistance and revolution, there can remain but one resort, the last of all – an appeal from the cancelled obligations of the compact, to original rights and the law of self-preservation. This is the ultima ratio under all governments, whether consolidated, confederated, or a compound of both. And it cannot be doubted that a single member of the Union, in the extremity supposed, but in that only, would have a right, as an extra and ultra-constitutional right, to make the appeal."
It was to this species of separation, which God in his infinite mercy avert! that the Committee understand Mr. Jefferson as referring, when he alluded to the farther measure of redress which might be resorted to in extreme cases, and spoke of Virginia's “standing by her arms.” It was this great calamity that he sought to avoid, when he so eloquently and feelingly invoked his native State never to think of it, until the sole alternatives left, were a dissolution of the Union, or submission to a Government, without limitation or power.
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