Sunday, April 29, 2012

The History of Nullification: Origins, Context, and Dangers (Part One)

The Setting

Ron Paul recently stated that we needed to "revisit" the long lost—and allegedly understood by the Founders—principle of state nullification of Federal law. In so doing, he laid just the latest foundation in a long line of statements, utterances and arguments he has made over the years—in conjunction with a well known and rather notorious coterie of intellectuals and historians—that clearly indicate his card carrying status in the quixotic and dangerous push to have the Confederate interpretation of American constitutional history revitalized. Indeed, he is the most public face of a movement to have the Neo-Confederate interpretation of American history mainstreamed. The principle problem with this is that the Confederate interpretation of the Constitution was invented due to the perceived necessity for some mechanism to defend one—and only one—institution: chattel slavery.

Ron Paul has laid out his agreement with this "interpretation" of Lincoln and the Civil War here, here, and here. An interview with Thomas J. DiLorenzo, author of such popular books as “The Real Lincoln,” and “Lincoln: Unmasked,” can be found here. Thomas Woods, Jr.'s website provides links to interviews, and his magnum opus on the supposed right to nullification can be found here. Watch Ralph Nader and Andrew Napolitano bash Lincoln here. Regnery has been doing a grave disservice to the dissemination of historical information by publishing a pernicious series of books by the likes of nullification propagandists Tom Woods, Kevin Gutzman, H.W. Crocker III, Clint Johnson, and Brion McClanahan. Clyde Wilson, another of these "revisionists," is so obsessed with defending the old south and John C. Calhoun that he's actually wormed his way into being the lead editor of Calhoun's papers. The Southern Poverty Law Center has been doing yeomen service tracking this circle of intellectuals and their write-up can be found here.

In what follows, I shall examine at some length the history behind nullification as a doctrine elucidated in its full form in the 1830s by John C. Calhoun. The historical context for this intellectual invention is long and somewhat complex, but I will explain it with as much reference to actual documentation as possible in this not-book-length piece from the launch of the Federal Government until the confrontation over nullification at the end of Andrew Jackson’s first term of office as President. This historical background is largely lost today, making it all too easy for nullification peddlers to foist a dangerous and compromised doctrine that did lead to disunion and civil war onto unsuspecting and generally well-meaning defenders of true individual liberty. It is for them that I dedicate the following.

The Old South Confronts a Problem

When the government officially launched in 1789, Southern representation in Congress—due in part to the three-fifths apportionment granted for enslaved Africans—seemed to guarantee those states where the institution was dominant an almost perfect equality in the House of Representatives. Of course, it did not take terribly long to see, by 1810—certainly by 1820—that the states which abandoned slavery, located in the North, were fast outpacing the slave states in population and economic diversification. Even with the advantage of additional representation for humans that were in many ways treated as anything but, Southern slave states quickly lost any hope of controlling the House of Representatives. They quickly lost any hope of even presenting an effectual block of any sort if the issue before that body transcended partisan differences and became “geographical.” This is why new state admission and the balance of the U.S. Senate quickly became such a potentially dangerous topic and why, after the Missouri Compromises in 1819-1821, States came into the Union mostly in pairs, one slave and one free. But the Missouri Compromise guaranteed—until the Treaty of Guadalupe-Hidalgo ended the Mexican-American War with a large addition of land—that the future for the Senate was largely going to replicate the House of Representatives’ past. More land above the parallel of 36° 30’ meant more free states which in turn meant more Senators who had no particular stake in defending the “peculiar institution” of the Southern states either politically or morally.

To illustrate this briefly with numbers, in 1790, 48 of the 105 Representatives hailed from the states which would still maintain slavery in 1860. That translates to 46% of the Representatives in 1790—and one needs to keep in mind that big states with Slavery remained North of Maryland in this early period, New York and New Jersey most prominently (slavery was not officially ended in those states until 1841 and 1804 respectively—though most slaves were freed in New York under a statute in 1817 that ended slavery by birth). By 1860, only 85 of the 241 Representatives came from Slave states—or 35%. The number of Representatives in Congress from the States which ended up a part of the rebellion was 61, or 25%. By contrast, the Senate had 32 Senators in 1800—16 from the slave states and 16 from the free states. By the election of 1860, there were 66 Senators—30 from the slave states and 36 from the free states. The attrition rate in the Senate was much less (50% to 45%) than in the House, but even in the bastion of state equality the slave states were finally losing their grip on power. Those who had a grasp on the economic developments in the country at large and the effects of slavery on the societies where it took hold were able to foresee these developments. And, if they were wedded to slavery as an institution either in theory and/or in practice, they were quick to sound the alarm bells for their section of the Union. In some cases, they were quick to offer possible “defensive” solutions that would assure that their shrinking minority retained trump cards against potentially aggressive actions by a Congress controlled entirely by non-slaveholding Senators and Representatives.

The man who personified this political and intellectual “movement” in the Old South was—and for the most part still is—John C. Calhoun (1782-1850) of South Carolina. Let there be no mistake, while I and a great many of his contemporaries believe Calhoun to have been a wild-eyed misguided fanatic who allowed himself to become so morally debased that he seriously argued on the floor of the Senate that slavery, “instead of an evil,” was “a good—a positive good,” there is still no doubt that his intellectual energy commanded attention and is the only thing that accounts for his continual office holding from 1811-1850.[1] Unfortunately, after the Missouri Crisis, Calhoun increasingly applied his intellectual gifts to the problem of creating a constitutional mechanism to protect the slaveholders in the South against an already obvious decline in the people’s House and a foreseeable decline in the Senate.

The opportunity for this arrived in 1828 when, during the scrambling and cantankerous election between incumbent John Quincy Adams and the avenging victim of an alleged “corrupt bargain” Andrew Jackson, the supporters of the latter passed a revision of the tariff that resulted in an election year bag of protectionist goodies for the sectors of the electorate where Jackson most needed votes—Pennsylvania, Louisiana, and the old Northwestern states now tied to international trade through the Erie Canal. Of course, this “tariff of abominations,” as free-traders came to call it, greatly antagonized the sections of the country most dependent on open markets and unrestrained commerce—the shipping portions of New England (Adams country) and the agrarian South where Jackson had little to fear of a defection to the hated man from Massachusetts. Jackson, of course, won the election and upon taking office immediately began calling for Congressional reconsideration of tariff rates downward to allay growing outrage.

Calhoun, who was Vice-President under Adams only to rather quickly join the opposition, remained Vice-President under Jackson and immediately found himself in an intense battle of wills with Jackson over two issues—one trivial, one not so trivial (though in Jackson’s mind, both were indicative of Calhoun’s utter unfitness as a man and a public official). The rather less serious issue involved the social ostracism of Peggy Eaton, the Secretary of War’s wife, about whom there were whispers of infidelity to her previous husband (the object of her illicit affections was her current husband, John Eaton, the Secretary of War). Calhoun’s wife led many other women in the upper crust of Washington society in shunning Peggy Eaton. Why does any of this matter? Andrew Jackson liked John and Peggy Eaton. In fact, Jackson’s wife Rachel, who died in the midst of the tumultuous and brutal 1828 election season, had been similarly tarred with her husband as immoral for having lived together openly as a couple before her first marriage was officially ended in legal divorce. When both Rachel and Andrew had been notified (improperly as it turned out) that the divorce was finalized, they were married—thus putting the future President’s wife in the uncomfortable and unintentional role of bigamist. The charge, long played out in Tennessee where Jackson had buried his “youthful indiscretions” in glory, reappeared in 1828. Many have speculated then and since that Jackson blamed the stress induced from this election year muckraking for Rachel’s demise. So, when Mrs. Calhoun—and by extension her husband—took the lead in blacklisting Peggy and John from social functions, Jackson made it clear that he would have none of it and invited the two of them to all official functions that he attended, thus letting the snobby holdouts exclude themselves from official Washington.

The more serious rupture involved Calhoun’s secret and then quite open orchestration of South Carolina’s vociferous, heated, and eventually warlike opposition to the Tariff of 1828. President Jackson also publicly opposed the tariff but he simply asked Congress to revise it to be less discriminatory and more in line with a simple revenue tariff of ad valorem rates. Calhoun staked out much more radical ground. Rather than simply have Congress lower the tariff rates, Calhoun argued, the whole concept of protective tariff rates that favored one section of the Union over any other was unconstitutional. Had that been the extent of Calhoun’s claims, the issue might have offered the country an opportunity to discuss the Federal Government’s legitimate scope in the regulation of foreign commerce, but Calhoun went further than this, advocating a unique and potentially catastrophic “constitutional” solution to the problem of unconstitutional laws that managed to get by both Congress and the President.

The Origins

Before moving onto what that solution was, we must first step back three decades to the war crisis with France in the wake of the publication of the diplomatic dispatches detailing what became known as the “XYZ Affair.” Simply, the French Revolutionary government responded to John Jay’s Treaty with Great Britain (ratified 1795) with outrage as a breach of faith and repudiation of the treaty of alliance Louis XVI made with the rebelling colonies in 1778. As the diplomatic crisis grew, American and French ships in the contested Caribbean merchant lanes began engaging in isolated skirmishes—which eventually erupted into a constrained but rather serious naval war between the two republics in those seas. President Adams sent a bi-partisan three-man team to Paris to try resolve the dispute and when they arrived they were informed that in order to even speak to the French Foreign Minister they would have to pay bribes to the three interlocutors they were forced to parley with—the subsequently infamous “X, Y, and Z” (whose names were replaced with the letters to avoid further embarrassments during ongoing negotiations). When two of the American diplomats returned to inform President Adams privately that the mission had failed and of the French outrage, Vice President Jefferson and his Republican allies immediately began calling for a release of diplomatic papers—they had become convinced that Adams and the Federalists were maliciously encouraging unfounded war against the French as an excuse to stay in power and were not making legitimate moves for peace.

This demand was eventually acceded to and promptly detonated in the hands of the Republicans. Revelation of the XYZ Affair enraged public opinion against France and those who were seen as sympathetic to France—namely, the Republicans. The wave of public opinion in 1798 emboldened the Federalists—who generally struggled to maintain any sort of excited national following in the wake of George Washington’s retirement—like nothing ever had or would again. In response they increased the size of the army many times over—bringing Washington out of retirement a final time as Commander-in-Chief of the new force. They created a Department of the Navy and expanded the size of the American fleet. And, of course, they passed a series of domestic laws that would eventually bring them down and mire nearly all of them in historical ignominy—the Alien and Sedition Acts. The former laws extended the period of residence required for citizenship and allowed the President to unilaterally arrest and expel Aliens he considered to be dangerous—this way largely aimed at French refugees from the Revolution and the former French colony of St. Domingue. The Sedition Act criminalized speech designed to bring the President, the Government generally, or the officers of the executive branch into disrepute and contempt (though the act famously allowed for truth as a defense, this was hardly a comforting feature to most Republicans).

In response to these acts—the latter of which was clearly at odds with the First Amendment—Vice President Jefferson and his retired colleague James Madison penned draft resolutions for the Kentucky and Virginia Legislatures. This is important to get correct now because the events of 1798 later became critical for Calhoun’s entire theory of state nullification and the subsequent Confederate theory of the constitution propounded by Jefferson Davis and others. Neither the Kentucky nor Virginia Legislatures “nullified” the Alien and Sedition Acts—nor did either of the respective resolutions of those Legislatures call upon the other states to “nullify” those laws. What, then, did they say and call for?

First of all, let us remember the context here. In the midst of a war buildup—not a war as yet, though naval engagements were occurring in the Caribbean—the party that controlled Congress and the Presidency had passed legislation that targeted not only aliens from enemy countries—i.e. those from countries with whom the United States were formally at war—but aliens from friendly countries as well (many Irish and French immigrants quickly joined the Republicans—so many assumed that the bill had more to do with partisan advantage than war preparation). In addition, the Federalists had passed a law that seemed to directly attack an individual right which the Constitution itself explicitly stated was beyond the power of Congress. While a very small number of blustering Republican editors were prosecuted under the Sedition Act and sentenced to jail time but these were important opposition editors and it had an inevitable chilling effect on political writing.[2] Jefferson put the problem to Madison this way on 7 June 1798: “They have brought into the lower house a sedition bill, which among other enormities, undertakes to make printing certain matters criminal, tho’ one of the amendments to the constitution has so expressly taken religion, printing presses &c. out of their coercion. Indeed this bill and the Alien bill both are so palpably in the teeth of the constitution as to shew they mean to pay no respect to it.”[3]

The Republicans, under the House leadership of Albert Gallatin, had put up a stout defense but were simply outvoted. As Jefferson, the Vice-President at the time, and James Madison, retired to his Montpelier estate, contemplated a scene where journalistic opposition was liable to earn one a prosecution they contemplated an alternative strategy—one that might be more effective that a campaign in the press. Simply, they drafted a set of resolutions to be presented in the legislatures of the States of Kentucky (Jefferson) and Virginia (Madison) which made the case that the Alien and Sedition Acts were unconstitutional and that other states should join in denouncing them as such ahead of the next elections. From the Virginia Resolutions, one can see the power of this indictment: “the other of which acts, exercises in like manner a power not delegated by the constitution, but on the contrary expressly and positively forbidden by one of the amendments thereto; a power which more than any other ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.”[4] Now the truly controversial portion of these resolutions came from two sources; first in their characterization of the origins of the Union and, second, their recommendations to the other states.

The chief problem, historically for Madison in the 1830s anyway, was Jefferson’s draft of the Kentucky Resolutions—they were subsequently modified and toned done by the Kentucky legislature before passage. Subsequent followers of the “Principle of ‘98” would take their direction from Jefferson’s more strident document. Jefferson—a man not present for either the drafting or the debate over the Constitution, and who as late as 21 March 1798 still believed that that document required a two-thirds majority for declarations of war—declared that: “the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government fro special purposes,--delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”[5]

As if this statement has not gone far enough, Jefferson elaborated further: “that is 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, were powers are assumed which have not been delegated, a nullification of the act is the rightful remedy [this portion was excised by the Kentucky legislature]: that every State has a natural right in cases not within the compact, (casus non fÅ“deris,) 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.”[6]

Madison’s much more circumspect appeal, adopted by the Virginia legislature on 21 December 1798, had characterized the Union and the nature of the remedy proposed this way: “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorised by the grants enumerated in that compact, and that in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.” Furthermore, Madison wrote: “That the good people of this Commonwealth having ever felt and continuing to feel the most sincere affection for their brethren of the other states, the truest anxiety for establishing and perpetuating the union of all, and the most scrupulous fidelity to that Constitution which is the pledge of mutual friendship, and the instrument of mutual happiness, the General Assembly doth solemnly appeal to the like dispositions of the other States, in confidence that they will concur with this Commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional, and that the necessary and proper measures will be taken by each, for cooperating with this State in maintaining unimpaired the authorities, rights, and liberties, reserved to the States respectively, or to the people.”[7]

And so the resolutions went out to the other states. The replies of the other legislatures (10 out of 14 responded), in the words of historian Lance Banning, “in every case condemn[ed] state interference in the federal sphere,” a reaction that would be repeated during the nullification crisis. New Hampshire’s response (and all the responses ran in a similar vein) stated bluntly: “That the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government; that the duty of such decision is properly and exclusively confided to the judicial department. That if the legislature of New Hampshire, for mere speculative purposes, were to express an opinion on the acts of the general government commonly called “the Alien and Sedition Bills,” that opinion would unreservedly be that those acts are constitutional and, in the present critical situation of our country, highly expedient. That the constitutionalist and expediency of the acts aforesaid have been very ably advocated and clearly demonstrated by many citizens of the United States, more especially by the minority of the General Assembly of Virginia. The legislature of New Hampshire, therefore, deem it unnecessary, by any train of arguments, to attempt further illustration of the propositions, the truth of which, it is confidently believed, at this day, is very generally seen and acknowledged.”[8]

Madison was playing damage control almost from the beginning—the resolutions put the opposition to John Adams in a poor, almost treasonous, light in the midst of a national war-time crisis. With the overwhelming condemnation from the other states, Madison (now back in the Virginia Legislature) chaired a committee of reply where he drafted his forever famous “Report on the Alien and Sedition Acts,” where he dialed back the implications of the resolutions by elaborating at some length precisely what had been meant by words like “interpose” and “the compact to which the states are parties.” In terms of the latter, Madison quickly retreated firmly into the embrace of the understanding the Federalists had settled upon during the ratification debates, that the ratification of the Constitution had been the act of “the people composing those political societies [the States], in their highest sovereign capacity.”[9] The Constitution gained its power, not as a league of states—that had been the nature of the Government under the Articles of Confederation Madison had worked so hard to destroy—but from a more fundamental source, the only source of sovereign power: “the true character in which it issued from the sovereign authority of the people.”[10] Furthermore, Madison delineated the line of authority by which all the American governments were established and, ultimately, ruled: “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; and at no time perhaps more necessary than at the present.”[11]

As for what the Virginia legislature meant by its ability to “to interpose for arresting the progress of the evil,” Madison insisted that the entire point of the efforts in Kentucky and Virginia was for alerting the people to what had happened in Congress so that they might respond constitutionally, i.e. through elections. The lion’s share of the criticism revolved around the perceived usurpation of Virginia and Kentucky of a role that had already been understood to belong to the Supreme Court of the United States, namely decided the constitutional fidelity of federal laws. In Federalist No. 80, Hamilton had already explained this role in some detail, writing: “Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government from which nothing but contradiction and confusion can proceed.” The reason to appoint one body—constitutionally the weakest and most passive—as the final arbiter of constitutional disputes was obvious and deadly serious. Hamilton appealed to the familiar history of Pufendorf for an illustration of the practical results of having as many arbiters as there were states: “History gives us a horrid picture of the dissensions and private wars which distracted and desolated Germany prior to the institution of the imperial chamber by Maximilian towards the close of the fifteenth century, and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquility of the empire. This was a court invested with authority to decide finally all differences among the members of the Germanic body.”[12]

Madison retreated here as well, simply stating that a “declaration that proceedings of the Federal Government are not warranted by the constitution, is a novelty neither among the citizens nor among the legislatures of the states; nor are the citizens or the legislature of Virginia, singular in the example of it.” These legislative opinions were, Madison maintained: “unaccompanied with any other effect, than what they may produce on opinion, by exciting reflection.”[13] Madison, in his “celebrated report,” never—not once—attempted to explain, invoke, or defend any alleged right of a state to “nullify” a federal law that was constitutionally enacted (as the Alien and Sedition Acts were, even if both or either were themselves unconstitutional, though the offending laws expired without ever being declared so by the courts).

The Interlude, Part One: Jeffersonians in Power

Adams and his divided Federalist cohorts were booted from the Presidency and the Congressional majority in what Jefferson later described as the “Revolution of 1800.” Now that they were the governing party, the Jeffersonian Republicans quickly set about transforming the goals and priorities of the government. The most important reform of Jefferson’s first term and a half was the dismantling of the Federalist war program from the expansion of the Army and Navy to the elimination of the direct taxes the Federalists had imposed to pay for them. But no matter how much any early American statesman tried to run away from war in the early decades of the government’s operations, they all realized sooner or later that they inhabited a world at war whose affairs were well beyond their ability to control.

In the summer of 1807, a British warship fired upon an American naval frigate just outside the Chesapeake Bay. When the American ship surrendered, the British boarded and impressed several seamen whom they claimed were deserters from the Royal Navy. The news was electric, calls for was immediate and universal. Jefferson and his cabinet were well aware of the dangers of going to war, completely unprepared, with the world’s foremost naval power. In addition to that obvious concern, Jefferson and Madison had long been devoted to the idea that Americans held true power in their commercial ties with the British—the United States was one of Britain’s biggest markets for manufactured goods—and that if the British were made to feel the economic pain of losing those ties, they would quickly succumb to American demands. The fact that American demands simply consisted of not boarding and impressing men from American vessels and keeping clear of free trade in non-contraband goods made Jefferson and Madison sure that the international community and the British people (particularly in the Midlands, Britain’s great manufacturing region) would soon see the folly of Whitehall’s actions.

This is what led to the imposition of the famous Embargo of 1807 (though it went into effect in 1808 and expired in March 1809), a scheme of impounding all outgoing American merchant trade both in ports and overland into British Canada. The resistance to this measure, and the subsequent enforcement acts passed in 1808 was intense, particularly in New England. Albert Gallatin, the President’s Treasury Secretary, who was largely in charge of carrying out these laws, told Jefferson: “I also think that an embargo for a limited time will at this moment be preferable in itself, and less objectionable in Congress. In every point of view, privations, sufferings, revenue, effect on the enemy, politics at home, &c., I prefer war to a permanent embargo.... Governmental prohibitions do always more mischief than had been calculated; and it is not without much hesitation that a statesman should hazard to regulate the concerns of individuals as if he could do it better than themselves.”[14] Jefferson, determined to avoid war almost at any price, and frustrated to the point of mental collapse by the successful evasion of the embargo laws in the Northeast—a back and forth between smugglers and Treasury officials that eventually led to jury nullifications and the executive declaration of the collapse of civil law along with the authorization of congress to enforce the laws with the Army and Navy of the United States—eventually declared: “I do not wish a single citizen to be deprived of a meal of bread...but I set down the exercise of commerce, merely for profit, as nothing when it carries with it the danger of defeating the objects of the embargo.”[15] The administration, it ought to be noted, was bolstered in its efforts by a Federalist judge in Massachusetts who upheld the constitutionality of the embargo under Federalist legal challenge from New Englanders.

The embargo collapsed, however, due to Republicans withering under the political pressure from their constituents and the lack of results in the position of Great Britain after a year of the experiment. Eventually, of course, the attempt to remain neutral during the later phases of the Napoleonic Wars failed, and while the United States had ample reasons for war with both Britain and France, it was only Great Britain that had an active capability of disrupting American trade internationally and only Great Britain that had a proclivity for snatching naturalized and native born Americans off of American ships for the depleted crews of the Royal Navy’s 1000 ships. Up to 6,000 Americans had been abducted during the resumption of war in Europe in 1803 until the declaration of war against Britain in 1812. During that war, when New England states—not just disgruntled majorities of the people within those states—attempting to thwart constitutionally enacted federal war measures, Jefferson of all people was among those encouraging his successor James Madison that what was needed was: “A barrel of tar to each state South of the Potomac will keep all in order, and that will be freely contributed without troubling government. To the North they will give you more trouble. You may there have to apply the rougher drastics of Govr. Wright, hemp and confiscation.”[16] This latter part was, of course, a reference to the actions of the Maryland militia against Loyalists during the revolutionary war—including hanging and property expropriation. Fortunately, Madison ignored these missives from Jefferson and others, instead relying mostly on public opinion and time to undermine the resistance to the war. But when Federalists convened a regional convention in Hartford, Connecticut at the end of 1814, Madison did not hesitate to transfer all manner of military units from the Canadian frontier to positions in and around New England to wipe out any secessionary movement that might appear.

That such a movement did not appear should not blind us to the fact that except for one intemperate document written in the midst of a war crisis and Federal suppression of the free press, Jefferson and Madison had done everything consistent with those who believed in Federal supremacy and emphatically accepted Jefferson’s dismissal of secession: “Be this as it may, in every free & deliberating society there must, from the nature of man, be opposite parties & violent dissensions & discords; and one of these, for the most part, must prevail over the other for a longer or shorter time. Perhaps this party division is necessary to induce each to watch & delate to the people the proceedings of the other. But if on a temporary superiority of the one party, the other is to resort to a scission of the Union, no federal government can ever exist. If to rid ourselves of the present rule of Massachusetts & Connecticut we break the Union, will the evil stop there? Suppose the N. England States alone cut off, will our natures be changed? are we not men still to the south of that, & with all the passions of men? Immediately we shall see a Pennsylvania & a Virginia party arise in the residuary confederacy, and the public mind will be distracted with the same party spirit. What a game, too, will the one party have in their hands by eternally threatening the other that unless they do so & so, they will join their Northern neighbors. If we reduce our Union to Virginia & N. Carolina, immediately the conflict will be established between the representatives of these two States, and they will end by breaking into their simple units. Seeing, therefore, that an association of men who will not quarrel with one another is a thing which never yet existed, from the greatest confederacy of nations down to a town meeting or a vestry, seeing that we must have somebody to quarrel with, I had rather keep our New England associates for that purpose than to see our bickerings transferred to others.... A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to it’s true principles. It is true that in the mean time we are suffering deeply in spirit, and incurring the horrors of a war & long oppressions of enormous public debt. But who can say what would be the evils of a scission, and when & where they would end? Better keep together as we are, hawl off from Europe as soon as we can, & from all attachments to any portions of it.”[17]

[1] John C. Calhoun, “Speech on the Reception of Abolition Petitions, Delivered in the Senate, February 6th, 1837,” in Paul Finkelman, ed., Defending Slavery: Proslavery Thought in the Old South, A Brief History with Documents (Boston: Bedford/St. Martin’s, 2003), 59.
[2] Geoffrey R. Stone, War and Liberty: An American Dilemma: 1790 to the Present (New York: W.W. Norton, 2007), 7-18.
[3] Thomas Jefferson to James Madison, Philadelphia, 7 June 1798, The Papers of James Madison, Vol. XII, eds. David B. Mattern, J.C.A. Stagg, et al (Charlottesville: University Press of Virginia, 1991), 143.
[4] Virginia Resolutions Against the Alien and Sedition Acts, 21 December 1798, James Madison: Writings, ed. Jack N. Rakove (New York: Liberty Fund, 1999), 590.
[5] Draft of the Kentucky Resolutions, October 1798, Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 449.
[6] Ibid, 453.
[7] Virginia Resolutions, Madison: Writings, 589-591.
[8] New Hampshire Resolutions of the Virginia and Kentucky Resolutions, 15 June 1799, Liberty and Order: The First American Party Struggle, ed. Lance Banning (Indianapolis: Liberty Fund, 2004), 237-238.
[9] Report on the Alien and Sedition Acts, 7 January 1800, Madison: Writings, 610.
[10] Ibid, 632.
[11] Ibid, 614.
[12] Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Isaac Kramnick (New York: Penguin, 1987), 446-447.
[13] Report on the Alien and Sedition Acts, Madison: Writings, 659.
[14] Albert Gallatin to Thomas Jefferson, Treasury Department, 18 December 1807, The Writings of Albert Gallatin, Vol. I, ed. Henry Adams (New York: Antiquarian Press, 1960 [reprint]), 368.
[15] Jefferson quoted in Merrill D. Peterson, Thomas Jefferson and the New Nation: A Biography (New York: Oxford University Press, 1970), 889-890.
[16] Thomas Jefferson to James Madison, Monticello, 29 June 1812, The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison 1776-1826, Vol. III, ed. James Morton Smith (New York: W.W. Norton, 1995), 1699.
[17] Thomas Jefferson to John Taylor, Philadelphia, 4 June 1798, Jefferson: Writings, 1049-1050.