Proclamation Regarding the Nullifying Laws of South Carolina

Image: Andrew Jackson, Thomas Sully (1845). National Gallery of Art
In rejecting the doctrine of nullification, President Andrew Jackson highlighted the opening language in the Constitution’s Preamble, “We the People of the United States, in order to form a more perfect Union...” and asked: “can it be conceived that an instrument made for the purpose of ‘forming a more perfect union’ than that of the Confederation could be so constructed by the assembled wisdom of our country as to substitute for that Confederation a form of government dependent for its existence on the local interest, the party spirit, of a state, or of a prevailing faction in a state?” In assessing the legitimacy of nullification and other claims grounded in state sovereignty, what importance should be attributed to the inclusion in the Constitution’s Preamble of the phrase “to form a more perfect Union”?
Compare President Jackson’s arguments against nullification with John C. Calhoun’s arguments in support of nullification in his Fort Hill Address (Vice President John C. Calhoun, Fort Hill Address, July 26, 1831). Which position is better supported?

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Introduction

In response to South Carolina’s ordinance of November 24, 1832, nullifying the 1828 and 1832 Tariff Acts , President Andrew Jackson (1767–1845) issued a proclamation repudiating “the doctrine of a state veto upon the laws of the Union.” Jackson devoted a significant portion of the proclamation to responding to South Carolina’s “threat of seceding from the Union.” In his view, advocates of secession rested their argument primarily on the claim that the Constitution was a compact made by the states that could be broken by a state. President Jackson responded that the Constitution formed a government representing and acting on the people, and “not a league.” Consequently, secession was not possible. Jackson acknowledged, however, as the Declaration of Independence required, that “secession, like any other revolutionary act, may be morally justified by the extremity of oppression; but to call it a constitutional right is confounding the meaning of terms.”

Congress responded to South Carolina’s Nullification Ordinance by authorizing military force to enforce the Tariff Acts but also offered concessions by enacting the Compromise Tariff Act of 1833. These actions, together with South Carolina’s rescinding of the Nullification Ordinance, defused the immediate crisis but did not resolve the underlying debate that Jackson engaged in this proclamation regarding whether nullification and secession were consistent with the Constitution. Nearly three decades later, South Carolina seceded from the Union (South Carolina Declaration of the Causes of Secession, December 24, 1860).

Source: Andrew Jackson, Proclamation 43—Regarding the Nullifying Laws of South Carolina, Gerhard Peters and John T. Woolley, The American Presidency Project, https://www.presidency.ucsb.edu/node/201756.


Whereas a convention assembled in the state of South Carolina have passed an ordinance by which they declare “that the several acts and parts of acts of the Congress of the United States purporting to be laws for the imposing of duties and imposts on the importation of foreign commodities, and now having actual operation and effect within the United States, and more especially” two acts for the same purposes passed on the 29th of May, 1828, and on the 14th of July, 1832, “are unauthorized by the Constitution of the United States, and violate the true meaning and intent thereof, and are null and void and no law,” nor binding on the citizens of that state or its officers; and by the said ordinance it is further declared to be unlawful for any of the constituted authorities of the state or of the United States to enforce the payment of the duties imposed by the said acts within the same state, and that it is the duty of the legislature to pass such laws as may be necessary to give full effect to the said ordinance....

To preserve this bond of our political existence from destruction, to maintain inviolate this state of national honor and prosperity, and to justify the confidence my fellow citizens have reposed in me, I, Andrew Jackson, president of the United States, have thought proper to issue this my proclamation, stating my views of the Constitution and laws applicable to the measures adopted by the convention of South Carolina and to the reasons they have put forth to sustain them, declaring the course which duty will require me to pursue, and, appealing to the understanding and patriotism of the people, warn them of the consequences that must inevitably result from an observance of the dictates of the convention....

The ordinance is founded, not on the indefensible right of resisting acts which are plainly unconstitutional and too oppressive to be endured, but on the strange position that any one state may not only declare an act of Congress void, but prohibit its execution; that they may do this consistently with the Constitution; that the true construction of that instrument permits a state to retain its place in the Union and yet be bound by no other of its laws than those it may choose to consider as constitutional. It is true, they add, that to justify this abrogation of a law it must be palpably contrary to the Constitution; but it is evident that to give the right of resisting laws of that description, coupled with the uncontrolled right to decide what laws deserve that character, is to give the power of resisting all laws; for as by the theory there is no appeal, the reasons alleged by the state, good or bad, must prevail. If it should be said that public opinion is a sufficient check against the abuse of this power, it may be asked why it is not deemed a sufficient guard against the passage of an unconstitutional act by Congress? There is, however, a restraint in this last case which makes the assumed power of a state more indefensible, and which does not exist in the other. There are two appeals from an unconstitutional act passed by Congress—one to the judiciary, the other to the people and the states. There is no appeal from the state decision in theory, and the practical illustration shows that the courts are closed against an application to review it, both judges and jurors being sworn to decide in its favor. But reasoning on this subject is superfluous when our social compact, in express terms, declares that the laws of the United States, its Constitution, and treaties made under it are the supreme law of the land, and, for greater caution, adds “that the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”1 And it may be asserted without fear of refutation that no federative government could exist without a similar provision. Look for a moment to the consequence. If South Carolina considers the revenue laws unconstitutional and has a right to prevent their execution in the port of Charleston, there would be a clear constitutional objection to their collection in every other port; and no revenue could be collected anywhere, for all imposts must be equal. It is no answer to repeat that an unconstitutional law is no law so long as the question of its legality is to be decided by the state itself, for every law operating injuriously upon any local interest will be perhaps thought, and certainly represented, as unconstitutional, and, as has been shown, there is no appeal.

If this doctrine had been established at an earlier day, the Union would have been dissolved in its infancy. The excise law in Pennsylvania, the embargo and nonintercourse law in the eastern states,2 the carriage tax in Virginia, were all deemed unconstitutional, and were more unequal in their operation than any of the laws now complained of; but, fortunately, none of those states discovered that they had the right now claimed by South Carolina. The war into which we were forced to support the dignity of the nation and the rights of our citizens might have ended in defeat and disgrace, instead of victory and honor, if the states who supposed it a ruinous and unconstitutional measure had thought they possessed the right of nullifying the act by which it was declared and denying supplies for its prosecution. Hardly and unequally as those measures bore upon several members of the Union, to the legislatures of none did this efficient and peaceable remedy, as it is called, suggest itself. The discovery of this important feature in our Constitution was reserved to the present day. To the statesmen of South Carolina belongs the invention, and upon the citizens of that state will unfortunately fall the evils of reducing it to practice.

If the doctrine of a state veto upon the laws of the Union carries with it internal evidence of its impracticable absurdity, our constitutional history will also afford abundant proof that it would have been repudiated with indignation had it been proposed to form a feature in our government....

In our colonial state, although dependent on another power, we very early considered ourselves as connected by common interest with each other. Leagues were formed for common defense, and before the Declaration of Independence we were known in our aggregate character as the United Colonies of America. That decisive and important step was taken jointly. We declared ourselves a nation by a joint, not by several acts, and when the terms of our Confederation were reduced to form it was in that of a solemn league of several states, by which they agreed that they would collectively form one nation for the purpose of conducting some certain domestic concerns and all foreign relations. In the instrument forming that Union is found an article which declares that “every state shall abide by the determinations of Congress on all questions which by that Confederation should be submitted to them.”3

Under the Confederation, then, no state could legally annul a decision of the Congress or refuse to submit to its execution; but no provision was made to enforce these decisions. Congress made requisitions, but they were not complied with. The government could not operate on individuals. They had no judiciary, no means of collecting revenue.

But the defects of the Confederation need not be detailed. Under its operation we could scarcely be called a nation. We had neither prosperity at home nor consideration abroad. This state of things could not be endured, and our present happy Constitution was formed, but formed in vain if this fatal doctrine prevails. It was formed for important objects that are announced in the Preamble, made in the name and by the authority of the people of the United States, whose delegates framed and whose conventions approved it. The most important among these objects—that which is placed first in rank, on which all the others rest—is “to form a more perfect union.” Now, is it possible that even if there were no express provision giving supremacy to the Constitution and laws of the United States over those of the states, can it be conceived that an instrument made for the purpose of “forming a more perfect union” than that of the Confederation could be so constructed by the assembled wisdom of our country as to substitute for that Confederation a form of government dependent for its existence on the local interest, the party spirit, of a state, or of a prevailing faction in a state? Every man of plain, unsophisticated understanding who hears the question will give such an answer as will preserve the Union. Metaphysical subtlety, in pursuit of an impracticable theory, could alone have devised one that is calculated to destroy it.

I consider, then, the power to annul a law of the United States, assumed by one state, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.... 

On such expositions and reasonings the ordinance grounds not only an assertion of the right to annul the laws of which it complains, but to enforce it by a threat of seceding from the Union if any attempt is made to execute them.

This right to secede is deduced from the nature of the Constitution, which, they say, is a compact between sovereign states who have preserved their whole sovereignty and therefore are subject to no superior; that because they made the compact they can break it when in their opinion it has been departed from by the other states. Fallacious as this course of reasoning is, it enlists state pride and finds advocates in the honest prejudices of those who have not studied the nature of our government sufficiently to see the radical error on which it rests.

The people of the United States formed the Constitution, acting through the state legislatures in making the compact, to meet and discuss its provisions, and acting in separate conventions when they ratified those provisions; but the terms used in its construction show it to be a government in which the people of all the states, collectively, are represented. We are one people in the choice of president and vice president. Here the states have no other agency than to direct the mode in which the votes shall be given. The candidates having the majority of all the votes are chosen. The electors of a majority of states may have given their votes for one candidate, and yet another may be chosen. The people, then, and not the states, are represented in the executive branch.

In the House of Representatives there is this difference, that the people of one state do not, as in the case of president and vice president, all vote for the same officers. The people of all the states do not vote for all the members, each state electing only its own representatives. But this creates no material distinction. When chosen, they are all representatives of the United States, not representatives of the particular state from which they come. They are paid by the United States, not by the state; nor are they accountable to it for any act done in the performance of their legislative functions; and however they may in practice, as it is their duty to do, consult and prefer the interests of their particular constituents when they come in conflict with any other partial or local interest, yet it is their first and highest duty, as representatives of the United States, to promote the general good.

The Constitution of the United States, then, forms a government, not a league; and whether it be formed by compact between the states or in any other manner, its character is the same. It is a government in which all the people are represented, which operates directly on the people individually, not upon the states; they retained all the power they did not grant. But each state, having expressly parted with so many powers as to constitute, jointly with the other states, a single nation, cannot, from that period, possess any right to secede, because such secession does not break a league, but destroys the unity of a nation; and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union. To say that any state may at pleasure secede from the Union is to say that the United States are not a nation, because it would be a solecism to contend that any part of a nation might dissolve its connection with the other parts, to their injury or ruin, without committing any offense. Secession, like any other revolutionary act, may be morally justified by the extremity of oppression; but to call it a constitutional right is confounding the meaning of terms, and can only be done through gross error or to deceive those who are willing to assert a right, but would pause before they made a revolution or incur the penalties consequent on a failure.

Because the Union was formed by a compact, it is said the parties to that compact may, when they feel themselves aggrieved, depart from it; but it is precisely because it is a compact that they cannot. A compact is an agreement or binding obligation. It may by its terms have a sanction or penalty for its breach, or it may not. If it contains no sanction, it may be broken with no other consequence than moral guilt; if it have a sanction, then the breach incurs the designated or implied penalty. A league between independent nations generally has no sanction other than a moral one; or if it should contain a penalty, as there is no common superior it cannot be enforced. A government, on the contrary, always has a sanction, express or implied; and in our case it is both necessarily implied and expressly given. An attempt, by force of arms, to destroy a government is an offense, by whatever means the constitutional compact may have been formed; and such government has the right by the law of self-defense to pass acts for punishing the offender, unless that right is modified, restrained, or resumed by the constitutional act. In our system, although it is modified in the case of treason, yet authority is expressly given to pass all laws necessary to carry its powers into effect, and under this grant provision has been made for punishing acts which obstruct the due administration of the laws.

It would seem superfluous to add anything to show the nature of that union which connects us, but as erroneous opinions on this subject are the foundation of doctrines the most destructive to our peace, I must give some further development to my views on this subject. No one, fellow citizens, has a higher reverence for the reserved rights of the states than the magistrate who now addresses you. No one would make greater personal sacrifices or official exertions to defend them from violation; but equal care must be taken to prevent, on their part, an improper interference with or resumption of the rights they have vested in the nation. The line has not been so distinctly drawn as to avoid doubts in some cases of the exercise of power. Men of the best intentions and soundest views may differ in their construction of some parts of the Constitution; but there are others on which dispassionate reflection can leave no doubt. Of this nature appears to be the assumed right of secession. It rests, as we have seen, on the alleged undivided sovereignty of the states and on their having formed in this sovereign capacity a compact which is called the Constitution, from which, because they made it, they have the right to secede. Both of these positions are erroneous, and some of the arguments to prove them so have been anticipated.

The states severally have not retained their entire sovereignty. It has been shown that in becoming parts of a nation, not members of a league, they surrendered many of their essential parts of sovereignty. The right to make treaties, declare war, levy taxes, exercise exclusive judicial and legislative powers, were all of them functions of sovereign power. The states, then, for all these important purposes were no longer sovereign. The allegiance of their citizens was transferred, in the first instance, to the Government of the United States; they became American citizens and owed obedience to the Constitution of the United States and to laws made in conformity with the powers it vested in Congress. This last position has not been and cannot be denied. How, then, can that state be said to be sovereign and independent whose citizens owe obedience to laws not made by it and whose magistrates are sworn to disregard those laws when they come in conflict with those passed by another? What shows conclusively that the states cannot be said to have reserved an undivided sovereignty is that they expressly ceded the right to punish treason—not treason against their separate power, but treason against the United States. Treason is an offense against sovereignty, and sovereignty must reside with the power to punish it. But the reserved rights of the states are not less sacred because they have, for their common interest, made the general government the depository of these powers. The unity of our political character (as has been shown for another purpose) commenced with its very existence. Under the royal government we had no separate character; our opposition to its oppressions began as united colonies. We were the United States under the Confederation, and the name was perpetuated and the Union rendered more perfect by the federal Constitution. In none of these stages did we consider ourselves in any other light than as forming one nation. Treaties and alliances were made in the name of all. Troops were raised for the joint defense. How, then, with all these proofs that under all changes of our position we had, for designated purposes and with defined powers, created national governments, how is it that the most perfect of those several modes of union should now be considered as a mere league that may be dissolved at pleasure? It is from an abuse of terms. Compact is used as synonymous with league, although the true term is not employed, because it would at once show the fallacy of the reasoning. It would not do to say that our Constitution was only a league, but it is labored to prove it a compact (which in one sense it is) and then to argue that as a league is a compact every compact between nations must of course be a league, and that from such an engagement every sovereign power has a right to recede. But it has been shown that in this sense the states are not sovereign, and that even if they were, and the national Constitution had been formed by compact, there would be no right in any one state to exonerate itself from its obligations....

Fellow citizens of the United States, the threat of unhallowed disunion, the names of those once respected by whom it is uttered, the array of military force to support it, denote the approach of a crisis in our affairs on which the continuance of our unexampled prosperity, our political existence, and perhaps that of all free governments may depend. The conjuncture demanded a free, a full, and explicit enunciation, not only of my intentions, but of my principles of action; and as the claim was asserted of a right by a state to annul the laws of the Union, and even to secede from it at pleasure, a frank exposition of my opinions in relation to the origin and form of our government and the construction I give to the instrument by which it was created seemed to be proper. Having the fullest confidence in the justness of the legal and constitutional opinion of my duties which has been expressed, I rely with equal confidence on your undivided support in my determination to execute the laws, to preserve the Union by all constitutional means, to arrest, if possible, by moderate and firm measures the necessity of a recourse to force; and if it be the will of Heaven that the recurrence of its primeval curse on man for the shedding of a brother’s blood should fall upon our land, that it be not called down by any offensive act on the part of the United States....

Footnotes
  1. 1. Article VI.
  2. 2. “The excise law in Pennsylvania” referred to the federal whiskey tax that led to the Whiskey Rebellion (1794). For the embargo law, see Document 13. The carriage tax, passed by Congress in 1794, was thought by some to be a direct tax and, as such, unconstitutional because not apportioned among the several states, as the Constitution requires (Article I, section 2). In Hylton v. United States (1796), the Supreme Court decided that the carriage tax was not a direct tax.
  3. 3. Articles of Confederation, Article XIII.
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