Monday, May 25, 2020

Liberty and Disunion

There is a statue of Daniel Webster in Central Park. It is tucked in at the intersection of West and Bethesda Drives, massive and unmoving, implacable and forbidding. Despite its size, it goes largely unnoticed, except as a meeting point.

Just a few hundred feet to the west of Webster is The Dakota, where John Lennon lived and died, and Strawberry Fields, a small memorial inside the Park dedicated to Lennon’s memory. In non-viral times, buses line up near The Dakota, and platoons of tourists pause there for pictures, then walk to Strawberry Fields, then across to Bethesda Fountain. If you happen to be jogging, they will wait until you pass, many with bemused looks at the strange beings who inhabit this odd corner of the universe. Occasionally, a guided tour will take brief note of Webster, but most move on. Such is fame.

It wasn’t always this way. There was a time when Daniel Webster was seen as a giant, one of the foremost statesmen of the first half of the 19th Century. He, along with Kentucky’s Henry Clay and South Carolina’s John C. Calhoun, were known as the Great Triumvirate of the Senate. All three also served as Secretary of State; all three ached for the Presidency and never quite got there; all three were antagonists, rivals, and sometimes collaborators. Clay was the Great Compromiser. Of Calhoun, the historian Richard Hofstadter said he was “probably the last American statesman to do any primary political thinking.” Webster was an orator so esteemed that Stephen Vincent BenĂ©t had him besting the Devil himself. 

These qualities all came together in one of the most fascinating and consequential debates in our history, South Carolina’s drive for Nullification, and, eventually, its assertion that it had the right to leave the Union. William F. Freehling called it a “Prelude to Civil War” (in a book of the same title) and, in its issues and its sectional animosities, one can see why. It certainly had high drama—florid speeches, torchlight parades, marching and mass rallies, dueling, armed militias drilling, and the glowering presence of the biggest personality of all, Andrew Jackson.

For all that, it started small. In 1816, the national government adopted tariffs that were intended to protect domestic manufacturers from foreign competition. At the time, it made sense. We were still a new nation, slowly recovering from the War of 1812, needing to support a military, domestic industry, and basic improvements. Yet, tariffs were controversial, particularly in the South. Though facially non-discriminatory, they did have an adverse impact on non-diversified agriculturally-based economies, while benefiting (mostly Northern) manufacturers. South Carolina, perhaps the most extreme example of a monoculture economy, and faced with an erratic market for its crops and steady degradation of its lands, was particularly vulnerable and justifiably concerned.

If Congress had left the 1816 Tariff unchanged, it’s likely the anger would have continued, but on a slow burn. Unfortunately, Congress wasn’t done. The Tariff of 1828 (“Tariff of Abominations”) exacerbated the problem, rather than offer legislative relief. It passed with minimal resistance, probably because the South had much bigger concerns: The rematch between the decidedly unloved John Quincy Adams and Tennessee’s Andrew Jackson. 

Adams’ election in 1824 had shaken the South. All were aware that demographic changes had tilted the Congressional playing field towards the North, but, after 24 years of the Presidency being held by Virginians (Jefferson, Madison, and Monroe), 1824 reminded them of their vulnerability. Virginians might be a little high-handed at times, but were comparatively safe. New Englanders were arrogant and boorish money-grubbers who held dangerous views on things like human bondage, and might use their power to take swipes at it.

Jackson decisively defeated Adams, but the Tariff was still there, and many South Carolinians wanted it gone. So did Calhoun, who was playing a difficult double game. As first Adams’ and then Jackson’s Vice President, it was difficult for him to advocate policies at direct variance with the President’s. And as someone who hungered for the top spot, it might have been political suicide to take too radical a position in public. In 1828, while the campaign was going on, he had secretly authored his “Exposition and Protest,” which quite explicitly called for nullification of the Tariff, in the context of making a much broader philosophical argument for what we now would call (very) limited government. But that remained a secret, and, in public, he maintained a moderate, more nationalistic face.

Nullification was a challenging concept, but Calhoun was an extraordinarily gifted thinker.  Even skipping some of the intricacies of his arguments, the underpinnings remain resonant, at a time when so many of us are questioning the exercise of government power. Calhoun worried about majority domination in a republican form of government. Invariably, in Calhoun’s thinking, once a group (or aligned groups) gained power, they would exploit their position to reward themselves at the expense of the minority.  Obviously, Calhoun wasn’t the first to recognize this; the Founders themselves had concerns. But experience had told him that the aspirational virtue expressed in Madison’s Federalist 10—a conviction that diversity of interests and opinions would create a dynamic that would foster compromise—had not been achieved.

The answer to Majority Tyranny was either nullification or what Calhoun called a “concurrent majority,” requiring each interest (each state) to consent to legislation. To modern eyes, it seems wildly impractical,  but, at a time when the world was far less complex, and many people thought of themselves as state citizens as well, it had some appeal. 

Yet, there was a core incongruity in Calhoun’s argument, which even he tacitly acknowledged: If you considered the Constitution a contract (as many citizens did, in the Lockean sense of the word), didn’t the states (including South Carolina, the eighth state to ratify) agree on behalf of themselves and their citizens to be bound by laws that were passed by Congress and signed by the President? The Tariff might very well be abominable, but it’s a law, and if you don’t like the law, use the mechanisms in place (such as Amendment or Supreme Court review) to change it.

Calhoun had an exquisitely wrought answer for this: That wasn’t the nature of the contract. The Constitution did not give final “sovereign” authority to determine what was Constitutional to any branch or branches of government, including the Supreme Court. Final authority would have had to have been specifically expressed as such in the document, and it was not. In the absence of an enumerated power, the authority remained with the states, and not as a majority of states, but each individual one. Calhoun considered several approaches, but settled on an elegant one: It is the people—the governed–who are the supreme arbiters over that to which they have given their consent. Consent once given is not consent for all time. The governed may withhold their consent and seek to change the terms of the contract (or any piece of legislation) when they wish, through the mechanism of a state convention. This was the way citizens preserved their rights.

Calhoun was somewhat clairvoyant in his concerns. He grasped that the power to determine, with finality, whether a law is Constitutional, was also a power to shape the law itself. Even the Supreme Court could be controlled by a malevolent majority. This is why, from his perspective, ultimate sovereignty must reside with the governed.

What Calhoun did not address adequately was the practical effect of Nullification. The power to say no turned majoritarianism on its head—to maintain a Union, the many must always yield to the few. While Calhoun professed to be a Nationalist (whether for political reasons or out of belief is not clear) he was, in fact, advocating for a policy that made it impossible for a union of states to be anything more than a casual confederation. 

As radical as this idea seems, it first gave strength to the Unionists in South Carolina by supplying them with an intellectual construct for their position. That allowed them to beat back the radicals who wanted more aggressive action (like secession). But it also contained the seeds of its own destruction because of its inherent instability. Nullification wasn’t reform; it was, in practice, a call for revolution from 50 years of government under the Constitution. Even those sympathetic to South Carolina on the specific issue of Tariffs (or, both tacitly and explicitly, slavery) recognized that there was no national consensus for it.

Discussion in Congress was heated, and, in late December 1829, Senator Samuel Foot (CT) lit a match by introducing a resolution calling for an inquiry into limiting the sale of public lands in what was then the Southwest. Over the course of the next few months, nearly half the Senators weighed in, several multiple times, and on many more issues than land. The speeches became public spectacles; the galleries were filled; and, as an added touch of drama, Calhoun attended in his (then) role as Vice President and President of the Senate. The emotional climax was the debate between Robert Y. Hayne of South Carolina and Webster. Hayne gave a good account of himself but stumbled a bit on nullification when he declared that the state legislature, rather than a state convention, could nullify a Federal law. Webster pounced. On January 26, 1830, he rose and, over two days, carefully dissected the internal inconsistencies of Haynes’s argument. Then Daniel Webster did a Daniel Webster:
When my eyes shall be turned to behold for the last time the sun in heaven, may I not see him shining on the broken and dishonored fragments of a once glorious Union…Let their last feeble and lingering glance rather behold the gorgeous ensign of the republic, not a stripe erased or polluted, nor a single star obscured…but everywhere, spread all over in characters of living light, blazing on all its ample folds, as they float over the sea and over the land…Liberty and Union, now and forever, one and inseparable!
The gallery, the entire Chamber, stayed silent as Webster resumed his seat. He had accomplished an extraordinary feat. With one burst of eloquence, he had yanked the discussion from Calhoun’s astringent intellectualism into something deeper and more emotional, a pride of place and country. Nullification was a coldblooded political tactic. Webster drew people to a higher calling.

Webster’s speech might have been a turning point, but, in hindsight, you can see he may also have accelerated the crisis. On February 5, 1830, George McDuffie, a South Carolina Congressman (and later Senator and Governor), introduced a bill to roll back the 1828 and 1824 rates. It was tabled by a decisive margin, demonstrating anew the futility of South Carolina’s hopes to get Congressional redress. A month of debate had moved its cause backwards, and some who hoped to work through the system now began to despair that more aggressive action was needed.

At the same time, relations between Calhoun and Jackson deteriorated. On April 13, 1830, at the annual Jefferson Day celebration, several toasts were made that supported the minority veto. Jackson would have none of it, and came armed with his own. He bade the crowd rise, fixed his fierce gaze on Calhoun, and toasted “Our Federal Union—It must be preserved.”  Calhoun, clearly shaken, was only able to offer “The Union—Next to our liberties, the most dear.”

The Nullifiers had boxed themselves in. The radicalness of their proposal and the intemperate language with which they often expressed themselves alienated others in the South who might otherwise have been sympathetic. Jackson himself was a moderate on the Tariff issue and urged his allies to make some accommodation, but both he and the South Carolinians must have realized that the contest was no longer just about collecting duties, it was about power, theirs, and his.

With nowhere else to go, the South Carolinians turned on each other, with the Nullifiers and the Unionists in pitched battle for control. The Unionists’ early upper hand evaporated as passions rose, and the Nullifiers’ superior organizational skills began to have an effect. In the summer of 1831, the pressure on Calhoun to out himself was finally too much to resist, and he issued his Fort Hill Letter, announcing to the nation his support of Nullification. Historians differ over whether this was an implicit acknowledgment that his presidential aspirations weren’t succeeding, or an attempt to be seen as a regional champion and win the White House that way. In either event, it drove a final wedge between him and both Jackson and Jackson’s supporters. Calhoun ceased being a national candidate.

On October 26, 1832, the State Legislature, now dominated by Nullifiers, passed a law authorizing a State Convention to be held a month later, to consider actions proper for the State to address in the absence of satisfactory progress. The Convention met in November, after Jackson had won reelection, and with no meaningful resistance from the Unionists (many of whom boycotted it), passed a sweeping resolution. After reciting a list of grievances, the resolution declared the Tariffs of 1828 and 1832 void and made it a penal offense for a federal or state officer to attempt to enforce them after Feb. 1, 1833. The Legislature was directed to pass any laws necessary to effectuate this, and to protect a citizen if he refused to pay duties. Any attempt by the federal government to enforce the laws would be considered a justification for South Carolina to secede. Governor Hamilton and the Legislature made sure that wasn’t the end of it. In a barnburner of a speech, he reinforced the idea of secession, and called for an army of at least 12,000 men. The Legislature passed the necessary enabling legislation and added something of its own: a “Test Oath” of exclusive obedience to state laws for all state officeholders (a remarkable demand given the Nullifiers’ complaints about majority tyranny at the federal level).

The Fire-eaters were exultant. They thought of the signing of the new ordinances as akin to that of the Declaration of Independence. Robert Hayne resigned from the Senate and was promptly elected Governor, and Calhoun resigned as Vice President and was selected to be his replacement. Hayne’s first speech exceeded Hamilton’s in passion and radicalism, and, by all accounts, many of his listeners were swept away by his fervor.

Perhaps this was the highwater mark. Reality began to close in very rapidly. The expressions of support that were expected from their fellow Southerners were notably absent, and several state governments were quite critical. And there was that man in the White House, who was not known to appreciate resistance.

Jackson didn’t wait long to react. Quietly, he gave orders for the military to prepare, while taking steps to minimize direct engagement so as to avoid the possibility of an inadvertent shooting war. Publicly, he gave his Annual Message to Congress, declaring that Nullification would endanger the Union, and expressing confidence that extant laws were sufficient for him to deal with it, but also encouraging Congress to review the Tariff laws and lower existing rates.

If South Carolina drew any comfort from this, he dispelled it quickly. On December 10th, Jackson took on Nullification and Secession with all the forcefulness and clarity of purpose for which he was known. In his Nullification Proclamation (largely written by Secretary of State Edward Livingston), he said,
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.
In case anyone thought his views on secession were any more nuanced: “[D]isunion, by armed force, is TREASON.”

The issue could not be more clearly drawn. To Jackson, his duty was clear, as was his understanding of the Constitutional “contract.” Once a law was duly enacted, the remedies available were through Constitutional Amendment or a ruling by the Supreme Court, not Nullification. But, the Nullification Proclamation wasn’t just a closed fist. If you read it through, you will also see Jackson appealing to South Carolinians’ sense of shared nationhood and their place as both heroes of the past and beneficiaries of a great American future.

January of 1833 was a blur of action. South Carolina speechified and planned, recruited and drilled. Jackson let it be known that he was willing to take command personally, to squelch the rebellion. Both sides wooed the undeclared Southern States, and both knew that the first one to commit a violent act could cause those states to tip in the opposite direction. In Washington, Jackson grimly prepared for the worst, but quietly looked for a less confrontational resolution. 

Delicate, difficult, but not impossible, and, at this critical moment, Jackson showed remarkable balance. The stick was his own iron will, and his request to Congress to give him additional authority in what came to be known as the “Force Bill.” The carrot: He encouraged the introduction of a Tariff reform bill.

Into the middle of this jumped Henry Clay, recently thoroughly thrashed by Jackson in the 1832 election. Clay was no fan of the President, and opposed the Force Bill, but relished the opportunity to be peacemaker, and privately worked with both sides, including directly with Calhoun. Calhoun played a public role as well, in a two-day performance ardently arguing against the Force Bill and for what had become his obsession, the logic of state sovereignty.  Then Webster rose to challenge Calhoun, defended the Force Bill and the compromise Tariff, and the circle closed. Deals were made, the Compromise of 1833 was set, and, on March 2, 1833, Jackson signed both the Force Bill and the Tariff Reform Bill, and South Carolina obliquely accepted it by pretending some of it didn’t quite exist. All the players congratulated themselves on their victories.

Happy ending? Calhoun maintained his allegiance to his theories, and was known to expostulate at great length to anyone within earshot. Clay found himself defined by his opposition to Jackson, but remained in the Senate, eventually becoming a Whig. He tried three more times for the Presidency, winning the nomination once more, in 1844, only to lose the general election to John Tyler. As for Webster, he ran for President in 1836, but ended up a fringe candidate. Later he was a credible Secretary of State, then returned to the Senate and worked with Clay on the Compromise of 1850. In a final irony, he was considered far too friendly to the South and lost political support closer to home.

South Carolina? The fire never went entirely out, and, if you think about it, the tension between Majority rule and Minority rights can never be fully resolved. All we can do is try to act in good faith, and, by doing so, engender trust.  It does seem like a thin reed at times.

Liberty and Disunion was first published on Memorial Day, May 25th, 2020 at

You can find it there, and other original work by Michael Liss.

And you can find and me on Twitter @SyncPol