Friday, December 02, 2005

Heresies and Evasions: James Madison and Nullification
By Alexander Marriott

The nullification crisis was the culminating moment that James Madison would live to see of the long history of compromises the founding fathers had made with slavery. Despite the rhetoric of tariffs and the adept move of the nullifiers to wrap themselves in the blanket of free trade, slavery was the central, if unspoken, subtext of the nullification debate. The power of the Southern states to prevent the federal government from enacting laws that Southerners did not like had obvious implications for the peculiar institution. For Madison, it was this unspoken subtext that was the most frightening spectacle of the whole crisis. He was adamant that the nullifiers were doctrinally bankrupt, but by 1832 he was practically begging Henry Clay to come up with some way to defuse the crisis that would be satisfactory to both sides. The appeasement of the nullifiers was the new price for the preservation of the union; confronting the unspoken subtext was for Madison, as it had been since the 1780’s, unthinkable.

Madison left his retirement to battle the nullifiers and he failed. Some of the reasons for that failure were petty, such as the nullifiers trying to marginalize him as a senile old man or an inconsistent scatter-brain, charges which he anticipated and dealt with repeatedly throughout the crisis. But more substantial reasons for that failure had more to do with Madison than his opponents. For instance, it had been Madison’s consistent policy since the Constitutional Convention to put the Constitution and Union above all else. This concern can be seen in his drive to get a Bill of Rights passed, and above all to “straddle” the issue of slavery in the First Congress, when Madison would condemn the institution and yet support moves to make sure it would not be discussed by congress. The most important reason for his failure was the complete inability of the Union to survive any prolonged or critical discussion of slavery or any peripheral issue (i.e. the tariff) which could serve as a proxy for the glaring contradiction. Madison was unwilling to risk the Union attempting to rid it of what he knew was a moral evil. Thus the crisis ended in compromise, which could only have meant victory for the nullifiers; nullification was intact and legitimized, the state compact theory of the Constitution gained undeserved respect and even the idea that secession was an actual right under the Constitution escaped official rejection. All of these legacies from the nullification crisis were the crucial foundations of the actions taken by the seceding Southern slave states in 1860-61. But as Madison’s frustration and futility in the nullification crisis confirms, the ultimate foundation for that tragedy had been laid at the opening moments of the republic’s inception.

James Madison was clearly one of the most important founding fathers at the end of the revolution and creation of the republic. He is credited with the structure, spirit, and, some would say, passage of the Constitution. Perhaps more credibly, since the Constitution’s creation and acceptance was the effort of many individuals, he is given accolades by scholars for the first ten amendments of the Constitution known now as the Bill of Rights. The young, energetic, and (in a clash against Madison’s somber and legalistic image today) sometimes fiery Madison was clear about slavery in the Federal Convention, when he opposed explicit constitutional recognition of the idea that men could be held as property as well as the “dishonorable” clause allowing the importation of slaves for another twenty years.[1] He was not successful in preventing the implicit recognition of slavery or the allowance of slave importation until 1808, but he was able to shelve his opposition to these features (just as he was able to shelve his opposition to the way the senate was structured) in favor of union. His subsequent actions, once the Constitution was adopted, on questions of slavery would be informed and directed by his memories of government before ratification and the difficulties encountered in the achievement of union.
Madison’s retirement years pose something of a problem for many Madison scholars for the simple reason that he seemed unable to deal with the greatest unspoken political issue of the age, slavery. Madison’s greatest hope, as always, was that the Union be preserved. Indeed, all of his political actions from his first days in congress, when he had worked vigorously to keep the promise of adding a bill of rights to the Constitution and had worked just as vigorously to keep the divisive issue of slavery off limits to debate, pointed to this overriding concern for the union. In his final piece of “advice” to the country he had been so instrumental in founding and shepherding through the first decades, he famously implored that the “Union of the States be cherished and perpetuated.” Open enemies of the Union were to be as “Pandora with her box opened” while the secret enemies slithered like the “serpent creeping with his deadly wiles into Paradise.”[2] Madison approached the nullification crisis from this vantage point.

The issue of state nullification had been long dormant since the brief threat of its surfacing in the late 1790s had been put into mothballs by Jefferson’s “Revolution of 1800.” By the end of the presidential administration of John Quincy Adams, more than a quarter century later, the issue was back. The explicit ideological issues which brought on the resurgence of nullification lay in the broad construction implications for federal power embodied in Henry Clay’s “American System” and the fascination with protectionism displayed by the outgoing president, his cabinet, and a good deal of the congress, particularly from those representing Northern regions that often made “infant industry” tariff arguments. Substantial and prolonged protests against protectionism began with the Tariff of 1828, which many Southerners derisively called the “Tariff of Abominations.” It almost seems absurd today that a serious constitutional debate would occur over whether the federal government had the power to set tariff policy, particularly because the Constitution is unequivocally clear on the matter in Article One, Section Eight, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises … To regulate commerce with foreign Nations ….”[3] The tariff was only a sign to those who would end up supporting nullification that when they seriously opposed something they still could be overruled by the other states (and this with inflated numbers of representatives in the House due to the constitution’s three-fifths clause). The implications of this development for much more serious issues, especially slavery, provided the impetus for the nullification movement.[4]

The concept of nullification as proposed by John C. Calhoun in his South Carolina Exposition and Protest was that any state, when it decided a federal law was unconstitutional, could nullify it and refuse to enforce it. This would force a constitutional crisis whereby the other states either had to pass a constitutional amendment or see the law not be carried out. If the amendment passed, the nullifying state could either accept defeat or simply decide to secede, which was asserted as a constitutional right of the states as the original parties to the constitution.[5] Without nullification as a constitutionally legitimate option and the extreme improbability that the South could ever muster the support in the North to pass a constitutional amendment to protect slavery, the peculiar institution would have been in extreme peril over the long run. In this sense nullification could be seen as a way to save the union, but such a conception is chimerical because, as Madison would say during the crisis, “to establish a positive & permanent rule giving such a power to such a minority over such a majority, would overturn the first principle of free Govt. and in practice necessarily overturn the Govt. itself.”[6] For the nullifiers, this calamity could be countenanced far easier than the risks posed by majority rule (particularly if that majority were from the North) to the future of slavery. The response Madison had to the nullification doctrine, as propounded by Calhoun, was unique.

The tremendous issues which faced the United States in the late 1810’s, the 1820’s, and 1830’s – including the Missouri Crisis, the decision of the election of 1824 by the House of Representatives, the rise and triumph of Andrew Jackson, and the Bank War – seemed unable to reengage Madison in public political controversy. This was not through lack of trying by others. Madison received many letters during his retirement soliciting his opinions on a whole host of issues and occasionally asking him to get publicly involved. He was reluctant to do this for a variety of reasons. Age and charges of senility always loomed as barriers to Madison when he contemplated reentering the political arena. He amusingly alluded to his age in a letter to Jared Sparks in what must be one of the most quoted lines he ever penned, “Having outlived so many of my cotemporaries, I ought not to forget that I may be thought to have outlived myself.”[7] Getting involved, for whatever limited effect he could have, in the acrimonious world of Jacksonian politics could hardly have been something to appeal to the elder statesman.

A young friend, protégé, and former private secretary of Madison’s, Edward Coles, was as involved as anyone in the political warfare that swirled around Andrew Jackson’s presidency. Coles implored his mentor to take up his pen to combat all of Jackson’s executive power grabs, ranging from his removal of federal deposits from the Second Bank of the United States to his inauguration of a spoils system for appointed offices in the federal government. Coles impetuously informed Madison of his “obligations which peculiar circumstances have placed you under to correct these errors.”[8] Coles, always sure that Madison agreed with him on everything whether it was his hatred of Jackson or his views on slave emancipation, told the former chief executive that “you should not conceal your opinions from your Countrymen, but that if you remain silent …. that the omission will be construed into your acquiescence in them.”[9] In his reply, Madison asked how he could be expected to engage in issues when there was a “habit now of invalidating opinions emanating from me by a reference to my age & infirmities?”[10] The rest of Madison’s response on the issue of getting involved in partisan Jacksonian politics was to ask Coles how he could possibly do so, for “Would not candour & consistency oblige me in denouncing the heresies of one side, not to pass in silence those of the other?”[11] Madison made it clear that he would be of no use to Coles in his political feuds with President Jackson.

Madison’s reticence to get involved in the bank controversy may be surprising considering what one might presume to be his personal attachment to the Second Bank of the United States given that it was he who signed its first charter in 1816. Madison’s reservations over the Bank had been quieted, with the former adversary deeming the new incarnation of Hamilton’s old idea to be sufficiently constitutional because its original passage and decades of operation “amounted to the requisite evidence of national judgment and intention.”[12] Charles Eaton Haynes wrote to Madison in 1831, asking for a clarification on Madison’s apparent turnaround on the Bank, “Believing that you were not influenced by that consideration [necessity after the War of 1812], & that justice requires the reasons of your assent be made public.”[13] In Madison’s letters to Haynes on this topic he was very clear about how his theory of constitutional construction allowed for his being reconciled to the Bank, especially as it was crafted in 1816, “The inconsistency is apparent only, not real; inasmuch as my abstract opinion of the text of the Constitution is not changed, and the assent was given in pursuance of my early and unchanged opinion, that in the case of a Constitution as of a law, a course of authoritative expositions sufficiently deliberate, uniform, and settled, was an evidence of the public will necessarily overruling individual opinions.”[14] For Madison, the constitutional and legal thinker, it was important “That precedents must be admitted, but they form exceptions which will speak for themselves and must justify themselves.”[15] Madison thought the Bank had proved its obvious utility and thus established a precedent during its years of operation. Even though Madison’s constitutional position on the Bank differed from Jackson, the issue was clearly not one of overarching importance or emergency for him, as evidenced by his refusal, despite the pleading of men like Coles, to leave his position “withdrawn from party agitations.”[16]

Aside from the Virginia Constitutional Convention, only the nullification crisis would get Madison off the sidelines of private correspondence and avid newspaper reading and back into the nasty political world of the emerging second party system.[17] By itself, John C. Calhoun and others espousal of the nullification probably have gotten Madison onto the public stage, but he had added incentive because the nullifiers explicitly tied their theory to the work Jefferson and Madison had done in 1798-1800 in their fight against the Federalist administration of John Adams and the onerous Alien and Sedition Acts.[18] Madison perceived something fundamentally dishonest in this connection, and he did everything, sometimes too much, in his power to combat and refute it.[19] But as one student of Madison’s political thought has succinctly put it, “The ‘spirit of ’98’ escaped Madison’s control to assume a life of its own.”[20]

In 1830, the growing nullification controversy triggered an epic debate in the U.S. Senate that Madison could not ignore. Daniel Webster of Massachusetts and Robert Hayne of South Carolina matched oratory, with both men drawing on Madison’s arguments, albeit from different times and in wildly different contexts, to defend their diametrically opposed visions of the union.[21] In perhaps the most amusing episode of Madison’s participation in the nullification crisis, Robert Hayne sent copies of his speeches against Webster to the ex-president “as an evidence of my high respect and esteem.” He then, rather arrogantly, told Madison that “I am also desirous of recalling your attention to the Constitutional principles involved in this controversy,”[22] as if it were possible for Madison to have overlooked this dimension of the debate. Hayne explicitly tied his position to Madison’s heroic leadership three decades earlier:

The Virginia Resolutions of ’98 and your admirable Report have almost faded away from the memory of the politicians of the present day. It is this forgetfulness which has led to the alarming assumptions of power on the part of the federal government, and I feel an entire conviction that nothing can save us from consolidation and its inevitable consequence the separation of the States, but the restoration of the principles of ’98, as illustrated in the documents above alluded to.[23]

He ended by telling Madison, “I should be gratified by knowing your present views, in relation to the great principles involved in these questions.”[24] Hayne was in for an incredibly long letter which explained the reasons for the writing of the Virginia and Kentucky Resolutions and Madison’s Report, and elaborated Madison’s views on the tariff and the idea of nullification. This letter to Hayne would later be adapted as a letter to Edward Everett for the purpose of being printed publicly so that those who cared would know what the remaining founding father thought of nullification and the efforts of its proponents to tie him and Jefferson to it. Hayne, according to one Madison biographer, spent four months in “shocked silence”[25] before sending what may have been the most astonishing letter Madison ever received, with the presumptuous passage, “They [Madison’s arguments] have failed to satisfy my mind that the doctrines advanced in my speech in the Senate are not the true doctrines of the Constitution or that they are inconsistent with the true spirit and meaning of the Virginia and Kentucky Resolutions of ’98 and ’99 or of your admirable Report in relation to the former.”[26] Madison’s confidence about his potential influence must have been shaken, not so much by his inability to get Hayne to renounce nullification, but Hayne’s by obstinacy and refusal to acknowledge that, indeed, Madison might know better than he, Hayne, what Madison had written.

Madison’s role in the nullification debates cannot be understood in the context of the familiar dichotomy scholars hereto attached to the Webster-Hayne debates, a dichotomy that pits extreme nationalists on one side and the nullifiers and secessionists on the other. Andrew Jackson, and for that matter James Madison, were not ultra-nationalists by any stretch of the imagination, yet they both vigorously opposed the nullifiers. Richard E. Ellis, a historian of the nullification crisis, has said that “The nullification crisis certainly was not simply, and perhaps not even mainly, a struggle between the proponents of nationalism and states’ rights. In a very fundamental way it also involved a struggle between advocates of different kinds of states’ rights thought.”[27] Another historian of Jacksonian politics has written that for “Andrew Jackson, South Carolina’s latest actions far exceeded the legitimate bounds of states’ rights. In his view, the Constitution clearly gave Congress the right to impose tariffs, while the principles of majority rule required South Carolina to submit to positive congressional decisions.”[28] Madison, no doubt, agreed with President Jackson, about the urgent need to challenge the nullifiers’ attempt to highjack the Jeffersonian tradition of states’ rights. Despite Madison’s reservations about stepping onto the field of political combat, the challenge to his own and to Jefferson’s legacy could not go unanswered. And there was a larger challenge to confront, the challenge posed to the Union under the Constitution, the grand work of Madison’s life and long career.

The aged patriarch received a significant confidence boost in the form of an old colleague’s letter in September 1830. That colleague was Kentucky Senator Henry Clay, whose collaboration with Madison went back as far as Clay’s oratorical shootout with John Randolph and simultaneous shepherding of the declaration of war in the House of Representatives in 1812.[29] The letter he sent was brief, but he enclosed a speech he had recently given about the events so important to the nullifiers, the “events of 1798-9, their motives and objects.”[30] Clay wanted Madison to read the speech because “As you bore so conspicuous a part in them, no one can judge whether the view which I have presented be correct or not,” except, of course, for Madison. After dealing with a man like Hayne, Madison was much pleased with Clay’s efforts, telling his old colleague that “The rescue of the Resolutions of Kentucky in -98 & -99, from the misconstructions of them, was very apropos; that authority being particularly relied on as an aegis to the nullifying doctrine which, notwithstanding its hideous aspect & fatal tendency, has captivated so many honest minds.”[31] For someone who had witnessed the entire history of the republic, with all the vicissitudes of the revolution, the confederation period, and then the operation of the government under the Constitution, it must have seemed absurd to have his and Jefferson’s attempts to foment resistance to such clearly unconstitutional pieces of legislation, as the Alien and Sedition Acts, compared to the efforts of some Southerners to foist an odd interpretive framework upon the country, which, if accepted, would surely presage the collapse of the Constitution (and hence the union) all because of a clearly legal, even if ill-advised, tariff.

A common charge of Madison’s contemporary critics ran that because Madison was near or over eighty years of age, he was no longer capable of logical reasoning or remembering why he had acted as he did thirty years previously. One of the main proponents of the idea of nullification was a fellow prominent Virginian, none other than Governor William Branch Giles. Governor Giles was smart enough to know Madison was hostile to nullification and thus based his defense of the theory more upon the writings of Jefferson than those of Madison.[32] Giles also went out of his way to undercut anything Madison might say against the nullifiers, proclaiming, “What Mr. Madison’s opinions at seventy-nine years of age may be, the writer knows not, nor can he even conjecture; but he proposes to rely upon his opinions of fifty, and the incontestable arguments which support them, whatever may be Mr. Madison’s own opinions at the present moment.”[33] This dodge by Giles to avoid an intellectual confrontation with a very much alive and mentally well Madison could hardly have impressed any serious followers of the controversy, particularly given Madison’s carefully thought out public writings on the topic like the Everett letter.

More serious criticism surrounded the supposed inconsistency of Madison rejecting nullification given his alleged support of it, or something akin to it, in 1798. To buttress this assertion, critics then and now have gone back through Madison’s whole career to find more instances of apparent contradiction to establish a pattern of intellectual reversals. These critics have also implied that his contradictions were not honorable and reflective changes of mind, but either the result of years or political whim. This is a colossal misread of the circumstances and of Madison’s political thought and priorities. The consistent underpinning of Madison’s constitutional ideas was his concern for the preservation of the union, usually by whatever means necessary, assuming they were constitutional. Madison’s conduct of the War of 1812 and the Bonus Bill veto fits into this schema because Madison could hardly conceive of a balanced, limited, and effective union under a constitution which was interpreted so liberally that the carefully laid out structures and delegated powers became meaningless. Such a system would be Hamilton’s “shilly shally thing of mere milk & water, which could not last, & was only good as a step to something better,” which was a conception of the Constitution that Madison and Jefferson had worked so hard for so many years to eradicate from the political scene.[34]

The supposed smoking gun on Madison’s inconsistency was his Bonus Bill veto, which capped off his presidency and came on the heels of a flurry of nationalistic legislation including a new Bank of the United States. Hostile historians have laid into Madison for what one of them has termed his “reputation for inconsistency,” stemming from his nationalist contributions to The Federalist and then subsequent opposition to Alexander Hamilton’s financial program.[35] Some have taken this critique to the point where antebellum politicians who laid the intellectual foundations for secession like John C. Calhoun look like innocent heroes crushed by Madison’s fickle and haphazard changes of opinion.[36] Kevin Gutzman has articulated this view in its most outlandish form:

His second term as president had ended on another outstanding note of tergiversation: the Bonus Bill veto of 1817. Ironically, it was precisely President Madison’s veto of the Bonus Bill that wrote finis to the prime legislative attempt of young Congressman John C. Calhoun to save the Union from mounting centrifugal forces.[37]

Suggesting, however vaguely, that Madison’s veto of the Bonus Bill somehow pushed Calhoun away from nationalism or, more outrageously, secured the end of the Union is laughable. On this issue alone Madison was perfectly clear to the congress about the constitutional considerations they had to pay attention to. In his seventh annual message and again in his eighth, both delivered after the war had ended, Madison called for a national program of road and canal building, but added constitutional caveats both times. “Any defect of constitutional authority which may be encountered can be supplied in a mode which the Constitution itself has providently pointed out,” was his warning at the end of 1815 while a year later he recommended that when “exercising their existing powers, and, where necessary, of resorting to the prescribed mode of enlarging them” in order to build roads and canals.[38] Madison was not trying to be cute and he was not using constitutional formalities for the sake of appearance or in some ritualized display of republican propriety. If any member of congress thought Madison took constitutionality lightly after his conduct of the war then they were certainly in for a well-deserved shock.

After congress passed the Bonus Bill in time for Madison to sign it into law as his last act as President, he firmly and politely refused. He reiterated his sympathies for the ends of the bill, “cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers”[39] to the constitutionally prescribed way of amendment but he made clear that he was “constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States.”[40] Knowing that his message was his last precedent-setting act while in office, Madison gave a brief exposition of his ideas about constitutional interpretation encapsulating the basic elements by, “seeing that such a power [to build roads and canals] is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and a reliance on insufficient precedents.”[41] Then as now Madison could not quell charges of hypocrisy and timidity. Gutzman writes, “Madison appears to be wildly inconsistent.”[42] But that could only have been true for anyone not paying any attention to Madison’s statements and actions, or had refused, at their own peril, to take him seriously.

Madison’s concern that the Union be preserved, with that Union under a government of limited powers which stayed true to the rule of law, constitutional precedent, and the understanding of the people at the time of ratification, placed him in an odd middle ground which few could understand. New and more polarized positions emerged and some new statesmen like Daniel Webster revived the ideas of the old Federalists, while people like Robert Hayne and John C. Calhoun set forth a view of the Union as a mere compact of sovereign states which could secede at will if they did not like the votes in congress. This necessary polarization (necessary because underneath it all lay an inescapable fundamental contradiction) further marginalized Madison’s importance and left him open to attack from those who were not so willing to sacrifice other values to union.[43] Yet even as the moment of nullification drew closer, Madison was still answering questions about his actions in 1798. In one such instance, Charles Eaton Haynes asked for,

An explanation of the extent to which you consider the states as parties to the federal compact “may interpose for arresting the progress of the evil, & for maintaining in their respective limits, the authorities, rights, & liberties appertaining to them, in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact.”? You will not fail to perceive that the object of my enquiries is to ascertain whether, in your opinion, a state can reject the operation of an act of Congress, that act being unconstitutional, according to the state in which such resistance is comprehended in the term nullification? I ask the question, not as connected with the constitutionality of a protecting tariff, for on that subject our opinions may differ, but as a constitutional question affecting, under every encroachment of federal authority, the rightful powers of the States.[44]

Madison’s response to this letter illustrates his growing frustration with repeatedly having to explain the same things over and over again. He began by saying “the distinction is obvious” between the proper methods for states to interpose against unconstitutional actions (i.e. the courts, elections, or those procedures mentioned in Article Five of the Constitution) and the proposed idea of nullification, which was a way for a small minority of states to force a constitutional crisis every time the federal government did something they did not like.[45] This method, as was apparent to Madison, could only ensure, not the preservation of “our liberties,”[46] but the collapse of the Union and the catastrophe that that would entail for the liberties of all. The only thing Madison would acknowledge was that “extreme cases of oppression” could justify “a resort to original rights,” i.e. the right of revolution, in which case the Constitution was finished anyway and there was no need to create imaginary methods of altering it.[47] The crisis was approaching a critical moment, as Jackson became more bellicose and the nullifiers more defiant Madison could see that argument was increasingly unlikely to solve the impasse. Other means would be needed if the Union was going to survive what was its most serious threat since 1820.

History has remembered Henry Clay as “The Great Compromiser” for a reason, and it is no surprise that Madison turned to the Kentuckian in the spring of 1832 as debates raged in the congress over a new tariff bill. Madison told Clay, “To these painful ideas [threats of nullification and the calling of a Southern Convention] I can only oppose hopes & wishes that notwithstanding, the wide space & warm feelings which divide the parties, some accommodating arrangements may be devised that will prove an immediate anodyne, and involve a lasting remedy to the Tariff discords.” If such a compromise failed to appear, Madison had apprehensions of the “disastrous consequences of disunion,” which were “obvious to all.” Madison hoped that such fears would serve as a “powerful check,” but knew that the country was precariously close to the brink. When the congress passed a modified tariff, which reduced most of the onerous rates that Southerners had protested in 1828, President Jackson signed it. The result was not reconciliation, but nullification.[48]

Though South Carolina would not formally nullify the Tariffs of 1828 & 1832 until November 1832, Madison and other anti-nullifiers of all partisan affiliations corresponded and worked feverishly to head off such an event in the months leading up to it. Madison was able to converse freely with Jacksonian officials ranging from future Vice-President Martin Van Buren and Secretary of State Edward Livingston, to Jackson’s private secretary and Madison protégé Nicholas P. Trist and even the President himself. One Madison biographer has pointed out that,

At the same time, by retaining his ties to the leading anti-Jackson foes of nullification, Clay, Webster, and John Quincy Adams, Madison was the nonpartisan elder statesman, the honorary chairman of an informal national committee to preserve the Union.[49]

It was in this period that Madison, often confined to his sickbed and with crippling rheumatism, made his final contributions to the preservation of the Union he held so dear.

The only problem with Madison’s heroic efforts in the twilight of his life was that he was aiming all of his remaining intellectual firepower in the wrong direction. He was arguing the constitutionality of tariffs and the irrationality of nullification while he remained silent on slavery, the perceived threat to which had caused the new-found Southern consternation over federal power (in Northern hands) in the first place. Madison was caught in a precarious and entirely self-imposed dilemma. The core issue for the supporters of nullification was the protection of slavery, the one issue which Madison knew could tear the Union apart and which he had pledged not to bring to the national political discourse.

Even though the aspersions against his age and intellectual consistency were frustrating and annoying to Madison, it was the issue of slavery which posed the biggest problem. It had always been his policy to keep what he knew, from his experience at the Constitutional Convention, was a potentially fatal issue to the Union out of public debate. Madison’s fatal consistency on slavery became an unfortunate tradition that was upheld by such subsequent American politicians as Henry Clay and Martin Van Buren (at least before 1840). As a result, the one issue that really was the threat to the Union was purposely ignored. The fact that men like Clay and Madison recognized the moral evil of slavery but did nothing to cut through the sophistries of the nullifiers, who were using the tariff as a screen for the larger threat that might come to slavery, meant that Madison was committing (for the final time) the fatal error of the founding.

South Carolina nullified the Tariffs of 1828 and 1832 in November 1832, prompting President Jackson to issue his Nullification Proclamation declaring the doctrine illegitimate. President Jackson made it clear he would be willing to use armed force to carry out the laws of the federal government. This was a political blunder that ended up alienating many anti-nullifiers in the South who thought Jackson was being rash. Richard E. Ellis has pointed out that Jackson’s reaction allowed Calhoun and the South an out: “The nullifier strategy of shifting the focus of debate from their own highly controversial constitutional doctrines to the dangers inherent in Jackson’s fierce determination to enforce the laws in South Carolina had succeeded.”[50] Madison was relieved in early 1833 when his old political ally, Henry Clay, proposed the compromise tariff that would finally end the nullification crisis. Madison, while happy the tensions were slackening off, wrote to Clay of his fears for the future because the nullifiers had “bequeathed” a dangerous legacy “to [their] country; by the insidious exhibitions of a permanent incompatibility and even hostility of interests between the South & the North; and by the contagious zeal in vindicating & varnishing the doctrines of Nullification & Secession; the tendency of all of which, whatever be the intention, is to create a disgust with the Union, and then to open the way out of it.”[51] Madison’s defense against this disastrous possibility was the idea that “We must oppose to this aspect of things a confidence, that as the gulf is approached, the deluded will recoil from its horrors, and that the deluders, if not themselves sufficiently startled, will be abandoned & overwhelmed by their followers.” This sort of wishful thinking meant that no one, including Madison, would have to address the very real threat to the Union that hardly anyone had mentioned during the crisis but lay just beneath the surface, slavery. Twenty-eight years later Madison’s union, his optimistic hopes notwithstanding, would come crashing down.

Henry Clay did bring up slavery in his reply to Madison, foreshadowing the great debates of the next two and a half decades which, before culminating in the Civil War, would provide one more crisis that demanded Clay’s compromising services. Quite bluntly, Clay told Madison, “The political malcontents in the South seem to have adopted a new theme to excite alarm and to disseminate sentiments unfriendly to the Union. … I hope that the Intelligence of the Country will perceive the object, and perceive also that there is not the slightest foundation for the alarm. I have never yet met with any Northern man who thought that Congress ought to interfere on the subject of the emancipation of the Slaves of the South further than to afford aid in accomplishing that object, if the South desired it.”[52] This rather dubious luxury of having no Northerners pushing the South to free the slaves would not last much longer. In his reply to Clay on the matter of Southerners trying to sow the seeds of discontent by way of insinuating that Northerners intended to force the South to emancipate the slaves, Madison put his confidence in the willingness of Northerners to put union above their concerns over the peculiar institution (as he was),

It is painful to observe the unceasing efforts to alarm the South by imputations agst the North of unconstitutional designs on the subject of the slaves. You are right, I have no doubt in believing that no such intermeddling disposition exists in the Body of our Northern brethren. Their good faith is sufficiently guarantied by the interest they have, as merchants, as Ship owners, and as manufacturers, in preserving a Union with the slaveholding States.[53]

In an odd premonition of which side would perform better were the two regions to separate, Madison added “On the other hand, what madness in the South, to look for greater safety in disunion. It would be worse than jumping out of the Frying-pan into the fire: it wd. be jumping into the fire for fear of the Frying-pan.”[54] The Union had been saved, but its salvation had come, as was repeatedly the case in the antebellum United States, at the expense of ignoring or sweeping under the rug more fundamental issues and problems. South Carolina was not even made to repudiate nullification with Clay’s compromise, and the nullifiers won the assurance that in nine years protectionism would be dead. Slavery endured, was never dealt with and purposely avoided so that it would not have to be.

Madison did his utmost to stay above the political fray, criticizing Webster’s overzealous nationalism while also praising his rhetorical efforts against the nullifiers. At the end of the immediate crisis in 1833 Madison was in bad shape in respect to his health and he could see that the threat had only been contained, not vanquished. No one has captured the sense of Madison’s frustration by the end of the battle better than McCoy, “Now the elderly Madison had no choice but to exhort posterity to be wise enough to understand – and to voluntarily embrace – a priceless legacy [the Constitution and union] that was in danger of being lost forever.”[55] The threat to the Union posed by nullification and the underlying problem of slavery, which Madison would never conclusively deal with, had the former president at the point of doubting his remaining efficacy as an effective public figure among the new generation of Americans who were running things.[56] This was not the irrational fear of a sick old man, but the realization that he could not be the central figure anymore in saving the Union he had devoted his public life to creating and defining. Perhaps, imbedded in this realization was another, that his dream of perpetual union was fatally compromised by his own compromise with slavery which, as McCoy argues, “undid him.”[57]

It was in the years after the crisis had passed that Edward Coles sent his letter asking Madison to mobilize against President Jackson’s actions against the Bank. Aside from the elements discussed earlier which annoyed Madison, was the following assertion Coles made, “The doctrine of nullification, however dangerous to the peace & union of the States, was harmless compared to the Executive powers & prerogatives now claimed by the President of the U. S.—The former was set forth by only a single State, & that comparatively a feeble one, and was considered absurd by the others; whereas the latter are sustained by all the popularity and power and patronage of the Chief Magistrate of the U. S.”[58] To this Coles added that “Nullification only endangered the Union—Jacksonism, or the doctrines of the President—are destructive of many of the great fundamental principles on which rest the Federal as well as the State Governments.”[59] This highly politicized reasoning struck Madison as irrational and dangerous – irrational because Jackson was a transient political figure whose “popularity is evidently and rapidly sinking under the unpopularity of his doctrines,”[60] and dangerous because Coles seemed to forget that nullification was alive, and what was “more evident than the progress it continues to make,” was that “Nullification has the effect of putting powder under the Constitution & Union, and a match in the hand of every party, to blow them up at pleasure.”[61] This correspondence occurred after the bruising nullification debates had ended in Clay’s compromise tariff. Madison’s odyssey through the crisis is instructive of the effectiveness and limitations of his influence in later years and the degree to which the new generation shared his concern that the Union not be broken up “into parts which a miracle only could reunite.”[62] It is also instructive of how long the fundamental contradiction of the Union could go on without being decided one way or the other. A Madison admirer from Illinois, among others, would bring this contradiction to the fore in the years after Madison had departed the scene.

The nullification crisis stands as a rather gloomy and tragic chapter in American history, foreshadowing much of what was to come, with one historian of the crisis bluntly saying, “The seemingly inconclusive outcome of the nullification crisis, especially where constitutional issues are involved, should not obscure the fact that it basically worked to the advantage of the nullifiers.”[63] Despite the efforts of Madison’s reasoning and the bellicose threats from President Jackson, the nullifiers were able to assure the defeat of protectionism (albeit not for another decade) and keep their “state compact” constitutional theory, with its corollary of secession, alive. Slavery, the proverbial elephant in the room, underlay the Southern concern over the power of the federal government, and yet it was not explicitly identified by the major participants, including Madison. Madison’s consistent refusal to make an issue of slavery is not surprising, but this tradition – a central element of Madison’s legacy – fatally compromised both the character and longevity of his beloved Union.[64]

The nullification crisis represented, at the very least, the last foray into the public world James Madison would make. One historian has said, “It was fitting that virtually the last remnant of Madison’s strength should be expended against an effort to deny to the nation the benefits of mutual accord that could only come in union.”[65] But Madison had entered the field apprehensive of the problems he would face among a new generation of Americans who viewed him more as an icon than a political actor. His apprehensions were well-founded, as he was the target of constant aspersions against his state of mind and ability to reason in his advanced age. He was forced to repeatedly defend actions from earlier parts of his career, and even when he expended tremendous amounts of effort and intellectual labor he met with reactions like those of Hayne and Giles, who declared they knew Madison’s positions better than Madison did. Despite his overwhelming desire to save his and Jefferson’s reputations from the clutches of the nullifiers and to preserve the union, Madison only succeeded in contributing to another Henry Clay compromise that offered, at best, a temporary fix. North and South would learn only too soon that compromise over such fundamental issues as whether or not men could be held as slaves was impossible in a country dedicated to human liberty. The old Madisonian solution of not talking about slavery – of attempting to “straddle” the gulf between those who wanted to do something about the ghastly blight on the republic, and those who wanted to do nothing – would simply no longer work. Without a viable alternative, Madison’s union was doomed, and in that very real and very tragic sense, Madison had “outlived” himself.

[1] James Madison, Notes of Debates in the Federal Convention of 1787 (New York: W.W. Norton and Company, 1966), 530 & 532.
[2] “Advice to My Country,” The Writings of James Madison, Vol. IX, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1910), facsimile at the end of the text.
[3] U.S. Constitution, Article One, Section Eight
[4] William W. Freehling, Prelude to Civil War (New York: Oxford University Press, 1966), 134-36.
[5] Harry L. Watson, Liberty and Power: The Politics of Jacksonian America (New York: Hill and Wang, 1990), 117-18.
[6] James Madison to Edward Everett, 28 August 1830, Writings, ed. Jack N. Rakove (New York: Library of America, 1999), 849.
[7] James Madison to Jared Sparks, 1 June 1831, Writings of James Madison, IX, 460.
[8] Edward Coles to James Madison, 17 August 1834, “Letters of Edward Coles,” William and Mary Quarterly, 2nd Ser., Vol.7, No. 1 (Jan., 1927), 41.
[9] Ibid. For more on the relationship of Madison and Coles, particularly Madison’s occasional annoyance with his young friend see McCoy, Last of the Fathers, 104-5 and 158-9.
[10] James Madison to Edward Coles, 21 August 1834, Writings of James Madison, IX, 537.
[11] Ibid.
[12] James Madison quoted in Ralph Ketcham, James Madison (Charlottesville: University Press of Virginia, 1990), 506.
[13] Charles Eaton Haynes to James Madison, 17 June 1831, in James Madison Papers, American Memory (Library of Congress Online), series two (microfilm), [].
[14] James Madison to Charles Eaton Haynes, 25 February 1831, Writings of James Madison, IX, 442-3.
[15] Ibid, 443.
[16] James Madison to Edward Coles, 29 August 1834, Writings of James Madison, IX, 536-7.
[17] Many Madison biographers have pointed out the amazing number of newspapers that he was able to avidly read and keep up with. See Ketcham, James Madison, 630; Jack N. Rakove, James Madison and the Creation of the American Republic, ed. Oscar Handlin, 2nd ed. (New York: Longman, 2002), 208; and McCoy, Last of the Fathers, 27-30.
[18] For a thorough discussion of how people have “misread” or have “liberally” misused Jefferson’s and Madison’s work from 1798-1800, written at a time when such abuses were resurfacing, see Adrienne Koch and Harry Ammon, “The Virginian and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties,” The William and Mary Quarterly, 3rd Ser., Vol. 5, No. 2 (Apr., 1948), 145-176.
[19] It is clear that in his efforts to make sure his views from 1798-1800, along with those of Jefferson, were not used by the nullifiers Madison may have tried to alter documents or feign forgetfulness, while it is not clear to what extent he may have done this, there have been verified cases of tampering; see Garry Wills, James Madison (New York: Times Books, 2002), 162-3; Irving Brant, James Madison: Commander in Chief: 1812-1836 (Indianapolis: The Bobbs-Merrill Company, 1961), 483-4; and Marvin Meyers, The Mind of the Founder, ed. Marvin Meyers (Indianapolis: The Bobbs-Merrill Company, 1973), 532.
[20] Meyers, The Mind of the Founder, 299.
[21] Brant, Commander in Chief, 476-79.
[22] Robert Hayne to James Madison, 5 March 1830, in James Madison Papers, American Memory (Library of Congress Online), series one (microfilm), [].
[23] Ibid.
[24] Ibid.
[25] Brant, Commander in Chief, 480.
[26] Robert Hayne to James Madison, 22 July 1830, in James Madison Papers, American Memory (Library of Congress Online), series two (microfilm), [].
[27] Richard E. Ellis, The Union at Risk (New York: Oxford University Press, 1987), 178.
[28] Watson, Liberty and Power, 127.
[29] Ketcham, James Madison, 526-7.
[30] Henry Clay to James Madison, 22 September 1830, The Papers of Henry Clay, ed. Robert Seager II and Melba Porter Hay (Lexington: University Press of Kentucky, 1984), Vol. VIII, 269.
[31] James Madison to Henry Clay, 9 October 1830, Writings of James Madison, IX, 410-11.
[32] For a discussion on how different Thomas Jefferson’s thought may have been from James Madison’s see Merrill D. Peterson, Thomas Jefferson and the New Nation (New York: Oxford University Press, 1970), 612-24.
[33] William Branch Giles quoted in Brant, Commander in Chief, 475.
[34] Alexander Hamilton’s view reported by Thomas Jefferson in “The Anas” found in Jefferson, Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 682.
[35] Kevin R. Gutzman, “A Troublesome Legacy: James Madison and ‘The Principles of ’98,’” Journal of the Early Republic, Vol. 15, No. 4 (Winter, 1995), 584. Beginning with Hamilton, who thought Madison had totally reversed himself, historians have tended to emphasize the suddenness and surprise of Madison’s opposition in the House of Representatives. Perhaps too much has been made of this “sudden” split since both men were federalists in the sense that they wanted the Constitution ratified, but had different reservations and motivations in this alliance. See Stanley Elkins and Eric McKitrick, The Age of Federalism (New York: Oxford University Press, 1993), 92-3 and 137; for an in depth study of the political economy developed by Jeffersonians and Madison in particular see Drew R. McCoy, The Elusive Republic (Chapel Hill: University of North Carolina Press, 1980).
[36] For an excellent point by point exposition of Calhoun’s political philosophy see Harry V. Jaffa, A New Birth of Freedom (Lanham, MD: Rowman & Littlefield, 2000), 403-71.
[37] Gutzman, “A Troublesome Legacy,” 584.
[38] James Madison, “Seventh State of Nation, Washington, DC, 1815-12-05,” []; Madison, “Eighth State of Nation, Washington, DC, 1816-12-03,” [].
[39] James Madison, Writings, “Veto Message to Congress, 3 March 1817,” 720.
[40] Ibid, 718.
[41] Ibid, 720.
[42] Gutzman, “A Troublesome Legacy,” 585.
[43] While Madison was mainly dealing with the southern element of this phenomenon, the northern element of abolitionists, those willing to put the end of slavery above union with slavery, would be just as disappointed with Madison and later politicians like him, i.e. Douglas and even Lincoln, for their refusal or hesitation in this matter.
[44] Charles Eaton Haynes to James Madison, 12 August 1832, in James Madison Papers, American Memory (Library of Congress Online), series two (microfilm), [].
[45] James Madison to Charles Eaton Haynes, 27 August 1832, Writings of James Madison, IX, 482-3.
[46] John C. Calhoun quoted in Watson, Liberty and Power, 121.
[47] James Madison to Charles Eaton Haynes, 27 August 1832, Writings of James Madison, IX, 483.
[48] James Madison to Henry Clay, 22 March 1832, Writings of James Madison, IX, 477-78.
[49] Ketcham, James Madison, 644.
[50] Ellis, The Union at Risk, 101.
[51] James Madison to Henry Clay, 2 April 1833, The Papers of Henry Clay, VIII, 636.
[52] Henry Clay to James Madison, 28 May 1833, The Papers of Henry Clay, VIII, 643.
[53] James Madison to Henry Clay, June 1833, Writings of James Madison, IX, 517.
[54] Ibid.
[55] McCoy, Last of the Fathers, 162.
[56] Ibid, 151.
[57] Ibid, 252.
[58] Edward Coles to James Madison, 17 August 1834, “Letters of Edward Coles,” 40.
[59] Ibid.
[60] James Madison to Edward Coles, 29 August 1834, Writings of James Madison, IX, 540.
[61] Ibid.
[62] Ibid, 542.
[63] Ellis, The Union at Risk, 183.
[64] For an excellent account on Madison’s actions in the first congress to suppress talk of slavery see Joseph J. Ellis, Founding Brothers (New York: Vintage, 2002), 81-119.
[65] Ketcham, James Madison, 646.

1 comment:

Anonymous said...

Madison was just being disingenuous in disconnecting the Principles of 1798 from the position of the Nullifers. They were adherents of his principles which he abandoned. He had to dishonestly twist and obfuscate the issue in Hegelian dialectical sophistry pretending he never meant what he originally said.