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STATES' RIGHTS AND THE CONSTITUTION
Daniel Webster (1782-1852), American statesman and orator, was a fervid patriot and defender of the Constitution in the period of controversy preceding the Civil War. The celebrated Reply to Hayne (1830) with its majesty of diction and sincerity of feeling is well represented in the following selection.
I must now beg to ask, Sir, Whence have left the choice of President with is this supposed right of the states electors; but all this does not affect the derived? Where do they find the power proposition that the whole government, to interfere with the laws of the Union ? President, Senate, and House of RepreSir, the opinion which the honorable sentatives
, is a popular government. It gentleman maintains is a notion founded leaves it still all its popular character. in a total misapprehension, in my judg- The governor of a state (in some of the ment, of the origin of this government, states) is chosen, not directly by the peoand of the foundation on which it stands. ple, but by those who are chosen by the I hold it to be a popular government, people, for the purpose of performing, erected by the people; those who admin- among other duties, that of electing a ister it, responsible to the people; and it- governor. Is the government of the state, self capable of being amended and modi- on that account, not a popular governfied, just as the people may choose it ment? This government, Sir, is the inshould be. It is as popular, just as truly dependent offspring of the popular will. emanating from the people, as the state It is not the creature of state legislatures; governments. It is created for one pur- nay, more, if the whole truth must be pose; the state governments for another. told, the people brought it into existence, It has its own powers; they have theirs. established it, and have hitherto supThere is no more authority with them to ported it, for the very purpose, amongst arrest the operation of a law of Con- others, of imposing certain salutary regress, than with Congress to arrest the straints state sovereignties. The operation of their laws. We are here to states cannot now make war; they cannot administer a Constitution emanating im- contract alliances; they cannot make, mediately from the people, and trusted by each for itself, separate regulations of them to our administration. It is not commerce; they cannot lay imposts; they the creature of the state governments. cannot coin money. If this Constitution, It is of no moment to the argument, that Sir, be the creature of state legislatures, certain acts of the state legislatures are it must be admitted that it has obtained a necessary to fill our seats in this body. strange control over the volitions of its That is not one of their original state creators. powers, a part of the sovereignty of the The people, then, Sir, erected this govstate. It is a duty which the people, by ernment. They gave it a Constitution, the Constitution itself, have imposed on and in that Constitution they have enumthe state legislatures; and which they erated the powers which they bestowed might have left to be performed else- on it. They have made it a limited govwhere, if they had seen fit. So they ernment. They have defined its authority.
They have restrained it to the exercise 1Webster led up to the question of states' of such powers as are granted; and all rights by reference to the Virginia Resolu- others, they declare, are reserved to the tions of 1798 drafted by Madison in protest
states or the people. But, Sir, they have against the steady extension of federal powers, especially as exemplified in the enact
not stopped here. If they had, they ment of the Alien and Sedition Acts.
would have accomplished but half their
'ork. No definition can be so clear, as This, Sir, was the first great step. By ► avoid possibility of doubt; no limita- this the supremacy of the Constitution ton so precise, as to exclude all uncer- and laws of the United States is declared. Linty. Who, then, shall construe this The people so will it. No state law is rant of the people? Who shall inter- to be valid which comes in conflict with ret their will, where it may be supposed the Constitution, or any law of the hey have left it doubtful? With whom United States passed in pursuance of it. o they repose this ultimate right of de- But who shall decide this question of iniding on the powers of the government? terference? To whom lies the last apir, they have settled all this in the full peal? This, Sir, the Constitution itself st manner. They have left it with the decides also, by declaring, overnment itself, in its appropriate ranches. Sir, the very chief end, the
that the judicial power shall extend to all nain design, for which the whole Con- cases arising under the Constitution and laws titution was framed and adopted, was to
of the United States, stablish a government that should not be bliged to act through state agency, or These two provisions cover the whole lepend on state opinion and state discre- ground. They are, in truth, the keyion. The people had had quite enough stone of the arch! With these it is a of that kind of government under the government; without them it is a conConfederation. Under that system, the federation. In pursuance of these clear egal action, the application of law to in- and express provisions, Congress establividuals, belonged exclusively to the lished, at its very first session, in the juditates. Congress could only recommend ; cial act, a mode for carrying them into heir acts were not of binding force, till full effect, and for bringing all questions the states had adopted and sanctioned of constitutional power to the final dethem. Are we in that condition still? Are cision of the Supreme Court. It then, we yet at the mercy of state discretion and Sir, became a government. It then had state construction? Sir, if we are, then the means of self-protection; and but for vain will be our attempt to maintain the this, it would, in all probability, have Constitution under which we sit.
been now among things which are past. But, Sir, the people have wisely pro- Having constituted the government, and vided, in the Constitution itself, a proper, declared its powers, the people have fursuitable mode and tribunal for settling ther said, that, since somebody must dequestions of constitutional law. There cide on the extent of these powers, the are in the Constitution grants of powers government shall itself decide; subject, to Congress, and restrictions on these always, like other popular governments, powers. There are, also, prohibitions on to its responsibility to the people. And, the states. Some authority must, there- now, Sir, I repeat how is it that a state fore, necessarily exist, having the ultimate legislature acquires any power to interjurisdiction to fix and ascertain the in- fere? Who, or what, gives them the terpretations of these grants, restrictions, right to say to the people, "We, who are and prohibitions. The Constitution has your agents and servants for one purpose, itself pointed out, ordained and estab- will undertake to decide, that your other lished that authority. How has it ac- agents and servants appointed by you for complished this great and essential end? another purpose, have transcended the By declaring, Sir, that
authority you gave them!” The reply
would be, I think, not impertinent, the Constitution, and the laws of the United "Who made you a judge over another's States made in pursuance thereof, shall be the servants? To their own masters they supreme law of the land, any thing in the constitution or laws of any state to the contrary
stand or fall.” notwithstanding
Sir, I deny this power of state legislatures altogether. It cannot stand the such a destitution of all principle, be fit test of examination. Gentlemen may say
to be called a government? No, Sir. It that, in an extreme case, a state gov- should not be denominated a Constituernment might protect the people from tion. It should be called, rather, a colintolerable oppression. Sir, in such a
Sir, in such a lection of topics for everlasting concase, the people might protect themselves, troversy; heads of debates for a disputawithout the aid of the state governments. tious people. It would not be a governSuch a case warrants revolution. it ment. It would not be adequate to any must make, when it comes, a law for it- practical good, or fit for any country to self. A nullifying act of a state legis- live under. lature cannot alter the case, nor make To avoid all possibility of being misresistance any more lawful. In main- understood, allow me to repeat again, in taining these sentiments, Sir, I am but the fullest manner, that I claim no powasserting the rights of the people. I ers for the government by forced or unstate what they have declared, and in- fair construction. I admit that it is a sist on their right to declare it. They government of strictly limited powers; of have chosen to repose this power in the enumerated, specified, and particularized general government, and I think it my powers; and that whatsoever is not duty to support it, like other constitu- granted is withheld.
granted is withheld. But notwithstandtional powers.
ing all this, and however the grant of For myself, Sir, I do not admit the powers may be expressed, its limit and competency of South Carolina, or any cxtent may yet, in some cases, admit of other state, to prescribe my constitutional doubt; and the general government would duty; or to settle, between me and the be good for nothing, it would be incapapeople, the validity of laws of Congress, ble of long existing, if some mode had not for which I have voted. I decline her been provided in which those doubts, as umpirage. I have not sworn to support they should arise, might be peaceably, the Constitution according to her con- but authoritatively, solved. struction of its clauses. I have not stipu- And now, Mr. President, let me run lated, by my oath of office or otherwise, the honorable gentleman's' doctrine a to come under any responsibility, except little into its practical application. Let to the people, and those whom they have us look at his probable modus operandi.” appointed to pass upon the question, If a thing can be done, an ingenious man whether laws, supported by my votes, can tell how it is to be done, and I wish conform to the Constitution of the to be informed how this state interfercountry. And, Sir, if we look to the ence is to be put in practice, without viogeneral nature of the case, could
any lence, bloodshed, and rebellion. We will thing have been more preposterous, than take the existing case of the tariff law. to make a government for the whole South Carolina is said to have made up Union, and yet leave its powers subject, her opinion upon it. If we do not renot to one interpretation, but to thirteen peal it (as we probably shall not), she
twenty-four interpretations? In- will then apply to the case the remedy of stead of one tribunal, established by all, her doctrine. She will, we must supresponsible to all, with power to decide pose, pass a law of her legislature, defor all, shall constitutional questions be claring the several acts of Congress, usuleft to four-and-twenty popular bodies, ally called the tariff laws, null and void, each at liberty to decide for itself, and as far as they respect South Carolina, or none bound to respect the decisions of the citizens thereof. So far, all is a paper others; and each at liberty, too, to give a transaction, and easy enough. But the new construction on every new election of its own members? Would any thing, Mr. Hayne. with such a principle in it, or rather with 2“Method of procedure."
collector at Charleston is collecting the fore, something concerning their rights duties imposed by these tariff laws. He, in this matter. They would inquire, therefore, must be stopped. The col- whether it was not somewhat dangerous lector will seize the goods if the tariff to resist a law of the United States. duties are not paid. The state authori- | What would be the nature of their ofties will undertake their rescue, the mar- fence, they would wish to learn, if they, shal, with his posse will come to the col- by military force and array, resisted the lector's aid, and here the contest begins. execution in Carolina of a law of the The militia of the state will be called out United States, and it should turn out, to sustain the nullifying act. They will after all, that the law was constitutional ? march, Sir, under a very gallant leader; He would answer, of course, Treason. for I believe the honorable member him- No lawyer could give any other answer. self commands the militia of that part of John Fries, he would tell them, had the state. He will raise the NULLIFY- learned that, some years ago. How, ING ACT on his standard, and spread it then, they would ask, do you propose to out as his banner! It will have a pre- defend us? We are not afraid of bulamble, setting forth, that the tariff laws lets, but treason has a way of taking peoare palpable, deliberate, and dangerous ple off that we do not much relish. How violations of the Constitution! He will do you propose to defend us? “Look at proceed, with this banner flying, to the my floating banner," he would reply; custom-house in Charleston,
"see there the nullifying law!" Is it
your opinion, gallant commander, they All the while
would then say, that, if we should be inSonorous metal blowing martial sounds.
dicted for treason, that same Aoating banArrived at the custom-house, he will tell ner of yours would make a good plea in the collector that he must collect no more the bar? "South Carolina is a sovereign duties under any of the tariff laws. This state," he would reply. That is true; but he will be somewhat puzzled to say, by would the judge admit our plea? "These the way, with the grave countenance, con- tariff laws," he would repeat, "are unsidering what hand South Carolina her- constitutional, palpably, deliberately, danself had in that of 1816. But, Sir, the gerously.” That may all be so; but if collector would not, probably, desist, at the tribunal should not happen to be of his bidding. He would show him the that opinion, should we swing for it? law of Congress, the treasury instruction, We are ready to die for our country, but and his own oath of office. He would it is rather an awkward business, this dysay, he should perform his duty, come ing without touching the ground! After what might.
all, that is a sort of hemp tax worse than Here would ensue a pause; for they
any part of the tariff. say that a certain stillness precedes the Mr. President, the honorable gentletempest. The trumpeter would hold his man would be in a dilemma, like that of breath awhile, and before all this military another great general. He would array should fall on the custom-house, have a knot before him which he could collector, clerks, and all, it is very proba- not untie. He must cut it with his ble some of those composing it would re- sword. He must say to his followers, quest of their gallant commander-in-chief “Defend yourselves with your bayonets”; to be informed a little upon the point of and this is war-civil war. law; for they have, doubtless, a just respect for his opinions as a lawyer, as well
1A Pennsylvania auctioneer who in 1799
resisted the direct tax, was tried for treason, as for his bravery as a soldier. They know he has read Blackstone and the
sentenced to be hanged, and pardoned by the
President. Constitution, as well as Turenne and
2 Alexander the Great, who cut the GorVauban. They would ask him, there- dian knot with his sword.
Direct collision, therefore, between tinue in its present form no longer than force and force, is the unavoidable result the people who established it shall choose of that remedy for the revision of uncon- to continue it. If they shall become stitutional laws which the gentleman convinced that they have made an injucontends for. It must happen in the very dicious or inexpedient partition and disfirst case to which it is applied. Is not tribution of power between the state this the plain result? To resist by force governments and the general government, the execution of a law, generally, is trea- they can alter that distribution at will.
Can the courts of the United If anything be found in the national States take notice of the indulgence of a Constitution, either by original provision state to commit treason? The common or subsequent interpretation, which saying, that a state cannot commit trea- ought not to be in it, the people know son herself, is nothing to the purpose. how to get rid of it. If any construction, Can she authorize others to do it? If unacceptable to them, be established, so John Fries had produced an act of Penn- as to become practically a part of the sylvania, annulling the law of Congress, Constitution, they will amend it, at their would it have helped his case? Talk own sovereign pleasure. But while the about it as we will, these doctrines go the people choose to maintain it as it is, while length of revolution. They are incom- they are satisfied with it, and refuse to patible with any peaceable administration change it, who has given, or who can of the government. They lead directly give, to the state legislatures a right to to disunion and civil commotion; and alter it, either by interference, constructherefore it is, that at their commence- tion, or otherwise ? Gentlemen do not ment, when they are first found to be seem to recollect that the people have any maintained by respectable men, and in a power to do any thing for themselves. tangible form, I enter my public protest They imagine there is no safety for them, against them all.
any longer than they are under the close The honorable gentleman argues, that guardianship of the state legislatures. if this government be the sole judge of Sir, the people have not trusted their the extent of its own powers, whether safety, in regard to the general Constituthat right of judging be in Congress or tion, to these hands. They have required the Supreme Court, it equally subverts other security, and taken other bonds. state sovereignty. This the gentleman They have chosen to trust themselves, sees, or thinks he sees, although he cannot first, to the plain words of the instrument, perceive how the right of judging, in this and to such construction as the governmatter, if left to the exercise of state leg- ment themselves, in doubtful cases, should islatures, has any tendency to subvert put on their own powers, under their the government of the Union. The gen- oaths of office, and subject to their retleman's opinion may be, that the right sponsibility to them; just as the people ought not to have been lodged with the of a state trust their own state governgeneral government; he may like better ments with a similar power. Secondly, such a constitution as we should have they have reposed their trust in the effiunder the right of state interference; but cacy of frequent elections, and in their I ask him to meet me on the plain mat- own power to remove their own servants ter of fact. I ask him to meet me on the and agents whenever they see cause. Constitution itself. I ask him if the Thirdly, they have feposed trust in the power is not found there, clearly and judicial power, which, in order that it visibly found there?
might be trustworthy, they have made as But, Sir, what is this danger, and what respectable, as disinterested, and as indeare the grounds of it? Let it be remem- pendent as was practicable. Fourthly, bered, that the Constitution of the United they have seen fit to rely, in case of neStates is not unalterable. It is to con- cessity, or high expediency, on their