The following speech that argues against the proposed doctrine of nullification (the right of a state to defy or refuse to obey a federal law) is considered one of the greatest during the first half of the 19th century...
THERE YET REMAINS to be performed, Mr. President, by far the most grave and important duty which I feel to be devolved on me by this occasion. It is to state, and to defend, what I conceive to be the true principles of the Constitution under which we are here assembled. I might well have desired that so weighty a task should have fallen into other and abler hands. I could have wished that it should have been executed by those whose character and experience give weight and influence to their opinions, such as cannot possibly belong to mine. But, sir, I have met the occasion, not sought it; and I shall proceed to state my own sentiments, without challenging for them any particular regard, with studied plainness, and as much precision as possible.
I understand the honorable gentleman from South Carolina to maintain, that it is a right of the state legislatures to interfere whenever, in their judgment, this government transcends its constitutional limits and to arrest the operation of its laws.
I understand him to maintain this right as a right existing under the Constitution, not as a right to overthrow it on the ground of extreme necessity, such as would justify violent revolution.
I understand him to maintain an authority, on the part of the states, thus to interfere for the purpose of correcting the exercise of power by the general government, of checking it, and of compelling it to conform to their opinion of the extent of its powers.
I understand him to maintain that the ultimate power of judging of the constitutional extent of its own authority is not lodged exclusively in the general government, or any branch of it; but that, on the contrary, the states may lawfully decide for themselves, and each state for itself, whether, in a given case, the act of the general government transcends its power.
I understand him to insist that if the exigency of the case, in the opinion of any state government, require it, such state government may, by its own sovereign authority, annul an act of the general government which it deems plainly and palpably unconstitutional. . . .
What he contends for is that it is constitutional to interrupt the administration of the Constitution itself, in the hands of those who are chosen and sworn to administer it, by the direct interference, in form of law of the states, in virtue of their sovereign capacity. The inherent right in the people to reform their government I do not deny; and they have another right, and that is to resist unconstitutional laws without overturning the government. It is no doctrine of mine that unconstitutional laws bind the people. The great question is-Whose prerogative is it to decide on the constitutionality or unconstitutionality of the laws? On that, the main debate hinges.
The proposition that, in case of a supposed violation of the Constitution by Congress, the states have a constitutional right to interfere and annul the law of Congress is the proposition of the gentleman. I do not admit it. If the gentleman had intended no more than to assert the right of revolution for justifiable cause, he would have said only what all agree to. But I cannot conceive that there can be a middle course, between submission to the laws, when regularly pronounced constitutional, on the one hand, and open resistance, which is revolution or rebellion, on the other.
I say, the right of a state to annul a law of Congress cannot be maintained but on the ground of the inalienable right of man to resist oppression; that is to say, upon the ground of revolution. I admit that there is an ultimate violent remedy, above the Constitution and in defiance of the Constitution, which may be resorted to when a revolution is to be justified. But I do not admit that, under the Constitution and in conformity with it, there is any mode in which a state government, as a member of the Union, can interfere and stop the progress of the general government, by force of her own laws, under any circumstance whatever.
This leads us to inquire into the origin of this government and the source of its power. Whose agent is it? Is it the creature of the state legislatures, or the creature of the people? If the government of the United States be the agent of the state governments, then they may control it, provided they can agree in the manner of controlling it; if it be the agent of the people, then the people alone can control it, restrain it, modify, or reform it. It is observable enough that the doctrine for which the honorable gentleman contends leads him to the necessity of maintaining, not only that this general government is the creature of the states, or that it is the creature of each of the states severally, so that each may assert the power for itself of determining whether it acts within the limits of its authority. It is the servant of four-and-twenty masters, of different wills and different purposes, and yet bound to obey all.
This absurdity (for it seems no less) arises from a misconception as to the origin of this government and its true character. It is, sir, the people's Constitution, the people's government, made for the people, made by the people, and answerable to the people. The people of the United States have declared that this Constitution shall be the supreme law. We must either admit the proposition or dispute their authority. The states are, unquestionably, sovereign, so far as their sovereignty is not affected by this supreme law. But the state legislatures, as political bodies, however sovereign, are yet not sovereign over the people. So far as the people have given power to the general government, so far the grant is unquestionably good, and the government holds of the people and not of the state governments. We are all agents of the same supreme power, the people. The general government and the state governments derive their authority from the same source. Neither can, in relation to the other, be called primary, though one is definite and restricted, and the other general and residuary. The national government possesses those powers, which it can be shown the people have conferred on it, and no more. All the rest belongs to the state governments, or to the people themselves. So far as the people have restrained state sovereignty, by the expression of their will, in the Constitution of the United States, so far, it must be admitted, state sovereignty is effectually controlled.
I do not contend that it is, or ought to be, controlled farther. The sentiment to which I have referred propounds that state sovereignty is only to be controlled by its own "feeling of justice"; that is to say, it is not to be controlled at all, for one who is to follow his own feelings is under no legal control. Now, however men may think this ought to be, the fact is that the people of the United States have chosen to impose control on state sovereignties. There are those, doubtless, who wish they had been left without restraint; but the Constitution has ordered the matter differently. To make war, for instance, is an exercise of sovereignty; but the Constitution declares that no state shall make war. To coin money is another exercise of sovereign power; but no state is at liberty to coin money. Again, the Constitution says that no sovereign state shall be so sovereign as to make a treaty. These prohibitions, it must be confessed, are a control on the state sovereignty of South Carolina, as well as of the other states, which does not arise "from her own feelings of honorable justice." The opinion referred to, therefore, is in defiance of the plainest provisions of the Constitution. . . .
I must now beg to ask, sir, whence is this supposed right of the states derived? Where do they find the power to interfere with the laws of the Union? Sir, the opinion which the honorable gentleman maintains is a notion founded in a total misapprehension, in my judgment, of the origin of this government, and of the foundation on which it stands. I hold it to be a popular government, erected by the people; those who administer it, responsible to the people; and itself capable of being amended and modified, just as the people may choose it should be. It is as popular, just as truly emanating from the people, as the state governments. It is created for one purpose; the state governments for another. It has its own powers; they have theirs. There is no more authority with them to arrest the operation of a law of Congress than with Congress to arrest the operation of their laws.
We are here to administer a Constitution emanating immediately from the people, and trusted by them to our administration. It is not the creature of the state governments. It is of no moment to the argument that certain acts of the state legislatures are necessary to fill our seats in this body. That is not one of their original state powers, a part of the sovereignty of the state. It is a duty which the people, by the Constitution itself, have imposed on the state legislatures; and which they might have left to be performed elsewhere, if they had seen fit. So they have left the choice of President with electors; but all this does not affect the proposition that this whole government, President, Senate, and House of Representatives, is a popular government. It leaves it still all its popular character. The governor of a state (in some of the states) is chosen, not directly by the people but by those who are chosen by the people, for the purpose of performing, among other duties, that of electing a governor. Is the government of the state, on that account, not a popular government?
This government, sir, is the independent offspring of the popular will. It is not the creature of state legislatures; nay, more, if the whole truth must be told, the people brought it into existence, established it, and have hitherto supported it for the very purpose, among others, of imposing certain salutary restraints on state sovereignties. The states cannot now make war; they cannot contract alliances they cannot make, each for itself, separate regulations of commerce; they cannot lay imposts; they cannot coin money. If this Constitution, Sir, be the creature of state legislatures, it must be admitted that it has obtained a strange control over the volitions of its creators.
The people, then, sir, erected this government. They gave it a Constitution, and in that Constitution they have enumerated the powers which they bestow on it. They have made it a limited government. They have defined its authority. They have restrained it to the exercise of such powers as are granted; and all others, they declare, are reserved to the states or the people. But, sir, they have not stopped here. If they had, they would have accomplished but half their work. No definition can be so clear as to avoid possibility of doubt; no limitation so precise as to exclude all uncertainty. Who, then, shall construe this grant of the people? Who shall interpret their will, where it may be supposed they have left it doubtful? With whom do they repose this ultimate right of deciding on the powers of the government? Sir, they have settled all this in the fullest manner. They have left it with the government itself, in its appropriate branches.
Sir, the very chief end, the main design, for which the whole Constitution was framed and adopted was to establish a government that should not be obliged to act through state agency or depend on state opinion and state discretion. The people had had quite enough of that kind of government under the Confederation. Under that system, the legal action, the application of law to individuals belonged exclusively to the states. Congress could only recommend; their acts were not of binding force till the states had adopted and sanctioned them. Are we in that condition still? Are we yet at the mercy of state discretion and state construction? Sir, if we are, then vain will be our attempt to maintain the Constitution under which we sit.
But, sir, the people have wisely provided, in the Constitution itself, a proper, suitable mode and tribunal for settling questions of Constitutional law. There are in the Constitution grants of powers to Congress, and restrictions on these powers. There are, also, Prohibitions on the states. Some authority must, therefore, necessarily exist, having the ultimate jurisdiction to fix and ascertain the interpretation of these grants, restrictions, and prohibitions. The Constitution has itself pointed out, ordained, and established that authority. How has it accomplished this great and essential end? By declaring, sir, that "the Constitution, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding."
This, sir, was the first great step. By this, the supremacy of the Constitution and laws of the United States is declared. The people so will it. No state law is to be valid which comes in conflict with the Constitution, or any law of the United States passed in pursuance of it. But who shall decide this question of interference? To whom lies the last appeal? This, sir, the Constitution itself decides also, by declaring, "that the judicial power shall extend to all cases arising under the Constitution and laws of the United States." These two provisions cover the whole ground. They are, in truth, the keystone of the arch! With these it is a government; without them it is a confederation. In pursuance of these clear and express provisions, Congress established, at its very first session, in the judicial act, a mode for carrying them into full effect, and for bringing all questions of constitutional power to the final decision of the Supreme Court. It then, sir, became a government. It then had the means of self-protection; and but for this, it would, in all probability, have been now among things which are past.
Having constituted the government and declared its powers, the people have further said that, since somebody must decide on the extent of these powers, the government shall itself decide; subject, always, like other popular governments, to its responsibility to the people. And now, sir, I repeat, how is it that a state legislature acquires any power to interfere? Who, or what, gives them the right to say to the people, "We, who are your agents and servants for one purpose, will undertake to decide that your other agents and servants, appointed by you for another purpose, have transcended the authority you gave them!" The reply would be, I think, not impertinent- "Who made, you a judge over another's servants? To their own masters they stand or fall."
Sir, I deny this power of state legislatures altogether. It cannot stand the test of examination. Gentlemen may say that, in an extreme case, a state government might protect the people from intolerable oppression. Sir, in such a case, the people might protect themselves, without the aid of the state governments. Such a case warrants revolution. It must make, when it comes, a law for itself. A nullifying act of a state legislature cannot alter the case, nor make resistance any more lawful. In maintaining these sentiments, sir, I am but asserting the rights of the people. I state what they have declared and insist on their right to declare it. They have chosen to repose this power in the general government, and I think it my duty to support it, like other constitutional powers. . . .
To avoid all possibility of being misunderstood, allow me to repeat again, in the fullest manner, that I claim no powers for the government by forced or unfair construction. I admit that it is a government of strictly limited powers; of enumerated, specified, and particularized powers; and that whatsoever is not granted, is withheld. But notwithstanding all this, and however the grant of powers may be expressed, its limit and extent may yet, in some cases, admit of doubt; and the general government would be good for nothing, it would be incapable of long existing, if some mode had not been provided in which those doubts, as they should arise, might be peaceably but authoritatively solved.
And now, Mr. President, let me run the honorable gentleman's doctrine a
little into its practical application. Let us look at his probable modus
operandi. If a thing can be done, an ingenious man can tell how it is to
be done, and I wish to be informed how this state interference is to be
put in practice, without violence, bloodshed, and rebellion.
Direct collision . . . between force and force is the unavoidable result of that remedy for the revision of unconstitutional laws which the gentleman contends for. It must happen in the very first case to which it is applied. Is not this the plain result? To resist by force the execution of a law, generally, is treason. Can the courts of the United States take notice of the indulgence of a state to commit treason? The common saying that a state cannot commit treason herself is nothing to the purpose. Can she authorize others to do it? If John Fries had produced an act of Pennsylvania annulling the law of Congress, would it have helped his case? Talk about it as we will, these doctrines go the length of revolution. They are incompatible with any peaceable administration of the government. They lead directly to disunion and civil commotion; and, therefore, it is that at their commencement, when they are first found to be maintained by respectable men, and in a tangible form, I enter my public protest against them all.
The honorable gentleman argues that if this government be the sole judge of the extent of its own powers, whether that right of judging be in Congress or the Supreme Court, it equally subverts state sovereignty.
This the gentleman sees, or thinks he sees, although he cannot perceive how the right of judging, in this matter, if left to the exercise of state legislatures, has any tendency to subvert the government of the Union. The gentleman's opinion may be that the right ought not to have been lodged with the general government; he may like better such a constitution as we should have under the right of state interference. But I ask him to meet me on the plain matter of fact. I ask him to meet me on the Constitution itself. I ask him if the power is not found there, clearly and visibly found there?
But, sir, what is this danger, and what am the grounds of it? Let it be remembered that the Constitution of the United States is not unalterable. It is to continue in its present form no longer than the people who established it shall choose to continue it. If they shall become convinced that they have made an injudicious or inexpedient partition and distribution of power between the state governments and the general government, they can alter that distribution at will. If anything be found in the national Constitution, either by original provision or subsequent interpretation, which ought not to be in it, the people know how to get rid of it. If any construction, unacceptable to them, be established, so as to become practically a part of the Constitution, they will amend it, at their own sovereign pleasure.
But while the people choose to maintain it as it is, while they are satisfied with it and refuse to change it, who has given, or who can give, to the state legislatures a right to alter it, either by interference, construction, or otherwise? Gentlemen do not seem to recollect that the people have any power to do anything for themselves. They imagine there is no safety for them, any longer than they are under the close guardianship of the state legislatures. Sir, the people have not trusted their safety, in regard to the general Constitution, to these hands. They have required other security, and taken other bonds. They have chosen to trust themselves, first, to the plain words of the instrument, and to such construction as the government themselves, in doubtful cases, should put on their own powers, under their oaths of office, and subject to their responsibility to them; just as the people of a state trust their own state governments with a similar power. Second, they have reposed their trust in the efficacy of frequent elections, and in their own power to remove their own servants and agents whenever they see cause, Third, they have reposed trust in the judicial power, which, in order that it might he trustworthy, they have made as respectable, as disinterested, and as independent as was practicable. Fourth, they have seen fit to rely, in case of necessity, or high expediency, on their known and admitted power to after or amend the Constitution, peaceably and quietly, whenever experience shall point out defects or imperfections. And, finally, the people of the United States have at no time, in no way, directly or indirectly authorized any state legislature to construe or interpret their high instrument of government, much less to interfere, by their own power, to arrest its course and operation.
If, sir, the people in these respects had done otherwise than they have done, their Constitution could neither have been preserved, nor would it have been worth preserving. And if its plain provisions shall now be disregarded, and these new doctrines interpolated in it, it will become as feeble and helpless a being as its enemies, whether early or more recent, could possibly desire. It will exist in every state but as a poor dependent on state permission. It must borrow leave to be; and will be no longer than state pleasure, or state discretion, sees fit to grant the indulgence and to prolong its poor existence.
But, sir, although there are fears, there are hopes also. The people have preserved this, their own chosen Constitution, for forty years and have seen their happiness, prosperity, and renown grow with its growth, and strengthen with its strength. They are now, generally, strongly attached to it. Overthrown by direct assault, it cannot be; evaded, undermined, nullified it will not be if we, and those who shall succeed us here, as agents and representatives of the people, shall conscientiously and vigilantly discharge the two great branches of our public trust, faithfully to preserve and wisely to administer it.
Mr. President, I have thus stated the reasons of my dissent to the doctrines which have been advanced and maintained. I am conscious of having detained you and the Senate much too long. I was drawn into the debate with no previous deliberation, such as is suited to the discussion of so gmve and important a subject. But it is a subject of which my heart is full, and I have not been willing to suppress the utterance of its spontaneous sentiments. I cannot, even now, persuade myself to relinquish it without expressing once more my deep conviction that, since it respects nothing less than the Union of the States, it is of most vital and essential importance to the public happiness.
I profess, sir, in my career hitherto, to have kept steadily in view the prosperity and honor of the whole country, and the preservation of our federal Union. It is to that Union we owe our safety at home, and our consideration and dignity abroad. It is to that Union that we are chiefly indebted for whatever makes us most proud of our country-that Union we reached only by the discipline of our virtues in the severe school of adversity. It had its origin in the necessities of disordered finance, prostrate commerce, and mined credit. Under its benign influences, these great interests immediately awoke, as from the dead, and sprang forth with newness of life. Every year of its duration has teemed with fresh proofs of its utility and its blessings. And although our territory has stretched out wider and wider, and our population spread farther and farther, they have not outrun its protection or its benefits. It has been to us all a copious fountain of national, social, and personal happiness.
I have not allowed myself, sir, to look beyond the Union, to see what might he hidden in the dark recess behind. I have not coolly weighed the chances of preserving liberty when the bonds that unite us together shall be broken asunder. I have not accustomed myself to hang over the precipice of disunion, to see whether, with my short sight, I can fathom the depth of the abyss below; nor could I regard him as a safe counselor in the affairs in this government whose thoughts should be mainly bent on considering, not how the Union may be best preserved but how tolerable might be the condition of the people when it should be broken up and destroyed. While the Union lasts, we have high, exciting, gratifying prospects spread out before us, for us and our children. Beyond that I seek not to penetrate the veil.
God grant that in my day, at least, that curtain may not rise! God grant that on my vision never may be opened what lies behind! 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; on states dissevered, discordant, belligerent; on a land rent with civil feuds, or drenched, it may be, in fraternal blood! Let their last feeble and lingering glance rather behold the gorgeous ensign of the republic, now known and honored throughout the earth, still full high advanced, its arms and trophies streaming in their original luster, not a stripe erased or polluted, nor a single star obscured, bearing for its motto, no such miserable interrogatory as "What is all this worth?" nor those other words of delusion and folly, "Liberty first and Union afterwards"; 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, and in every wind under the whole heavens, that other sentiment, dear to every true American heart-Liberty and Union, now and forever, one and inseparable!
Source: The Writings and Speeches of Daniel Webster, Boston, 1903, Vol. VI, pp. 3-75, as published in The Annals of America, Encyclopedia Britannica, Inc., Volume 5, 1968, pp. 347-355.
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