“The confederation has been formed by the free will of the states. […] If today one of these very states wanted to withdraw its name from the contract, it would be quite difficult to prove that it could not do so. The federal government, in order to combat it, would not rely in a clear way on either force or law.”
— Alexis De Tocqueville
William Freehling stands fairly alone in calling Calhoun “one of the more confused political philosophers in the American tradition.” Indeed the opposite is true – the Carolinian is often considered brilliant but somewhat at odds with the American mainstream. According to Richard Hofstadter, Calhoun’s alleged interest in minorities should not fool us, since “not in the slightest was he concerned with minority rights as they are chiefly of interest to the modern liberal mind.” More recently, James Read argued that while “Calhoun’s critique of majority rule … should be taken seriously,” his new theory of government through consensus “ultimately fails” — such government being “neither effective nor just.”
Calhoun’s expulsion from the “American tradition” goes along with his depiction as the ultimate “symbol of the Lost Cause.” This started in the aftermath of the civil war – with the famous Yankee soldier who, according to Walt Whitman, said: “Calhoun’s monument … is the desolated, ruined south; nearly the whole generation of young men between seventeen and thirty destroyed or maim’d; all the old families used up — the rich impoverish’d, the plantations cover’d with weeds, the slaves unloos’d and become the masters, and the name of southerner blacken’d with every shame – all that is Calhoun’s real monument.” Many years later, Vernon Parrington stated, in what was considered the classic work on American thought between the two world wars, “[w]hatever road one travels one comes at last upon the austere figure of Calhoun, commanding every highway of the southern mind.”
This identification of the man and thinker with a nation-region and an epoch – a cultural endeavor that Southerners sometimes welcomed, not always realizing it served the larger end of evicting anything “Southern” from American orthodoxy – was the peculiarly Yankee way of “sanitizing” Calhoun. The author of the Disquisition might be of some interest to antiquarians, academics more than subliminally nostalgic about the Old South (neo-Confederates), not to mention plain bigots and racists. But history has purged him; he’s gone with the wind.
During the cold war, Richard Hofstadter labeled Calhoun “the Marx of the Master Class” —politically very suggestive terms detested by ordinary Americans. For Hofstadter, Calhoun was a “reverse Marx” in that he shared with the author of Das Kapital the idea of history as an irreducible struggle between various economic interests, but openly chose the side of Southern aristocracy against the oppressed.
Calhoun was indeed a reverse Marx, but for a very different reason. Calhoun identified political power, not wealth production, as the source of privileges enjoyed by the “masters,” who control, not means of production, but the mechanism of government. The reversal comes not from preferring bourgeoisie over proletariat, but instead sharply inverts the relationship between structure and superstructure. For Calhoun government action always creates two conflicting classes in the community: tax producers and tax consumers.
The source of inequality between people comes not from the marketplace in “civil society,” but from the working of the State. Political power provides leverage that dominant interests use to their advantage behind others’ backs. Calhoun’s exploitation theory is only peripherally a defense of slavery, and is at bottom a realistic evaluation of parasitism. Government, though necessary for society’s welfare, provides means for violently disciplining conflicts of interest, making the strongest, the best, or simply the majority prosper at others’ expense. Without slavery’s ominous stain, comprehensible in context , Calhoun would be the American philosopher of freedom par excellence. Unfortunately he accepted this parasitic relationship as a natural fact between Europeans and African slaves in the Southern states, but could not tolerate such a relation between free men in the American federation, based on equality of states as well as citizens. From the time he embraced the States’ Rights cause, through the theory of nullification and Concurrent Majority, Calhoun’s search for the best possible government unfolded as a continuous search for governmental forms that would block parasitism rather than serve as its open instrument.
In Calhoun’s thought the tension between democracy, federalism, and classical liberalism crystallized as a purely constitutional conflict. While at the dawn of the republic Thomas Jefferson put great faith in the American experiment of self-government, holding that the federal system of government and popular control of elected officials would protect natural rights, subsequent American political history made democracy and federalism seem contradictory concepts. Calhoun shouldered the theoretical challenge posed by these irreducible facts.
For Calhoun, the United States were something more than, and different from, a simple league of states, but should never become a centralized democracy ruled by absolute majorities — the “worst possible form,” “a consolidated government swayed by the will of an absolute majority.” Government by majority rule at all levels meant abandonment of all constitutional guarantees. The right of a state to judge, as a last resort, constitutional limits imposed on the federal government should be defended at all costs; otherwise the United States would be destroyed, becoming first a full-grown modern State and then an executive dictatorship.
Federal structure does not appear, however, to be in overall tension with democratic doctrine, but only with its degenerative aspects. In fact, “the government of the uncontrolled, numerical majority is but the absolute and despotic form of popular government – just as that of the uncontrolled will of one man, or a few, is of monarchy or aristocracy.”
Calhoun, Vice President and senator from South Carolina, was almost unique in his own and later times: an American political thinker who can rank as a true political philosopher. According to Ralph Lerner, he produced the sole example of “an American political theory”.
His reflections on constitutional government, “concurrent majority,” “popular sovereignty” and its limits, have every right to be reckoned among the great constructions of nineteenth century political theory, and their importance is not limited to the American Union. The concurrent majority and the concept of the federal compact as an agreement between the states are the central features of his thought. His criticism of the simple numerical majority, the heart of his Disquisition on Government, emerges intact one hundred and sixty years after its first printing.
The linchpin of Calhoun’s political theory was the defense of the southern states and their position in the American Union. In the three decades preceding the Civil War, the South came toperceive itself as a minority oppressed and exploited by the federal government, rapidly becoming the powerful political lever of the North.
Many years ago, Jesse Carpenter analyzed the South’s transformation of into a “permanent minority” that realized it could not reverse the preponderance of a hostile North that resolutely burdened the “slave states” with the costs of the federal government. In a veritable theoretical and constitutional escalation, the South sought security for its society and culture through various political stances. Down to the Missouri Compromise of 1820, constitutionally guaranteed self-government seemed adequate; later, in the 1820s, 1830s and 1840s, the South rested its defense on the “concurrent majority.” Between the admission of California to the Union in September 1850 and Abraham Lincoln’s election in November 1860, the South relied on constitutional guarantees, and especially on the Supreme Court, before finally deciding to form an independent confederation.
Even though Calhoun only participated actively from the late 1820s until his death in 1850, in reality he examined thoroughly every possible political and constitutional solution for the South. For years he looked for a constitutionally grounded defense against Northern and federal incursions.
1) The States in the Constitution
The most important constitutional provision against the abuse of power by an exceedingly powerful majority is “modern federalism,” i.e., the distribution of powers between state and federal governments. “The powers of the General Government are particularly enumerated and specifically delegated; and all powers not expressly delegated […] are reserved expressly to the States or the people.”12 The entire Constitution can be interpreted as a system of delegated powers, prescribed and delimited so as to protect the rights of individuals and those of every state.
Down to the 1850s, the South sought protection in a precise vision of the federal compact, which itself seemed to find incontrovertible textual and hermeneutical supports in the Constitution. From the 1820s onward, however, northeastern industrial majorities in Congress after Congress constituted an insurmountable barrier seriously endangering the constitutional balance, so that the task of holding the federal government to constitutional limits was entirely concentrated in the fight against that power bloc. While the political debate of the generation before Calhoun had entrusted to constitutional interpretation nearly all the issues at the heart of later controversies, with Calhoun’s advent as the key thinker of the age, analysis of political questions and their possible remedies became crystal clear. And the linchpin of Calhoun’s analyses was always the power of the individual state as a contracting party to, and real “dominus” of, the federal pact.
Political power flows from its source in the states to the federal government: this seems clear in that the Constitution authorizes and prohibits actions of the federal government, but as regards the states, nothing is ever permitted, only prohibited. Thus, taking the Constitution at face value, the federal government is under quite different constraints than are State authorities: a federal action must be clearly permitted. On the contrary, state political authorities need only ask if a constitutional prohibition exists, absent which they can act freely. The Tenth Amendment is the architrave of the American federal polity summing up the entire system of permissions and prohibitions.
On the other hand, many constitutional scholars believe that a broad interpretation of the Tenth Amendment contradicts Article VI of the Constitution, the so-called “supremacy” clause. They see a contradiction in American law, to be resolved by affirming that either federal supremacy applies and thus any state law contrary to federal law “vanishes,” or that, on the opposing view, a judge must decide whether a federal law exceeds its delegated competence, in which case it disappears from the system.
Calhoun saw things differently. “The [federal supremacy] clause is declaratory … it vests no new power whatever in the government, or in any of its departments”; the article, actually, does not maintain anything, not even the supremacy of the federal government, which “results from the nature of the relation between the federal government, and those of the several States, and their respective constitutions and laws.” In fact, when a Constitution and a common government are formed, the authority of these, within the limits of the delegated powers, must, of necessity, be supreme, in reference to their respective separate constitutions and governments. Without this, there would be neither a common constitution and government, nor even a confederacy. The whole would be, in fact, a mere nullity. But this supremacy is not an absolute supremacy. It is limited in extent and degree. It does not extend beyond the delegated powers—all others being reserved to the States and the people of the States. Beyond these the constitution is as destitute of authority, and as powerless as a blank piece of paper; and the measures of the government mere acts of assumption.
With supposed federal supremacy thus circumscribed, Calhoun began dismantling the whole centralist interpretation of the Constitution. The Constitution systematically orders the ideal of limited government: it is a long and detailed list of prohibitions and distinctions reflecting the Revolutionary generation’s overriding suspicion of any form of power over people. But the Constitution could also be amended to meet changing needs. No states’ rights advocate ever denied this; rather, the center of the constitutional analysis by Calhoun and his followers was precisely the states’ role in constitutional amendment. According to Calhoun, the amending power is the linchpin of state sovereignty and final proof of its rightful place in the American compact. Article V of the Constitution, in fact, “shows, conclusively, that the people of the several States still retain that supreme ultimate power, called sovereignty—the power by which they ordained and established the constitution; and which can rightfully create, modify, amend, or abolish it, at its pleasure.”
The Constitution therefore was not some higher law open to evolving with the spirit of the times, majority will, the political classes in power, or the preferences of Supreme Court Justices, but a compact between sovereign states, renegotiable only through amendments.
Calhoun fiercely opposed centralist readings of the Constitution, through which, without amendment and renegotiation of the contract by the member states, the pact acquired new content. Through questionable theories and jurisprudential interpretations, backed by the Northern numerical majority, the security of the Union’s less populated region of was collapsing.
In January 1833, during the most acute phase of the nullification crisis, Calhoun presented to the Senate three resolutions on the rights of the states reflecting the strong conceptual core of his view of the Union. First, the peoples of the several states were part of a constitutional contract to which they acceded by ratification as separate and independent communities, and the Union as such exists between the states that have ratified the pact. The general government, constituted for specific purposes, possessed only those powers expressly delegated by the pact, and when it exercises powers not delegated its acts are null and void. Furthermore, there being no common judge between the contracting parties, each party is sovereign in judging both violations and sanctions. Finally, the assertion that Americans as individuals were parties to the social contract was false and contrary to the most reliable historical evidence; thus all exercise of power by the federal government based on such erroneous convictions was without foundation and would inevitably destroy the liberty of the states as parties to the federation.
Here Thomas Jefferson’s assertion in the Kentucky Resolutions of 1798 of the absence of a common judge among the parties remained central, though in a conceptual framework unbound by natural law arguments (or the “contractarian model”); rather the federal government itself stood accused of acting as if there were a social contract among the American people.
According to Carl Schmitt,
The importance … of Calhoun’s arguments … for the concepts pertaining to a constitutional theory of federation is not weakened by the fact that the South was defeated in the civil war. … As far as the United States is concerned … it is important, regardless of phrasing and predetermined notions, to pose the question of whether the US is still nowadays a federation or merely of a vestige of an authentic federation.
This is precisely the main issue. Calhoun, and the South with him, stubbornly depicted the United States as an authentic federation, and believed that the states formed the Constitution as an instrument bestowing the power of amendment on three quarters of themselves, and that the delegation of governmental functions to the superstructure created to manage the common affairs did not substantially alter the contractual and voluntary nature of the association.
It was history, not theory, that was moving in an entirely different direction.
2) Nullification
Calhoun’s thought on constitutional and political theory developed systematically in the course of his fight against the laws that introduced the tariffs.
In December 1828 Calhoun published (anonymously, since he was still U.S. Vice President) the South Carolina Exposition and Protest, in which he buttressed the theory of nullification with a wealth of argumentation, and ended by foreshadowing possible Southern withdrawal from the Union. This document divided American political history into “before” and “after”: before the Exposition the South lacked leadership, “regional awareness,” and an articulated constitutional doctrine defending its political, economic and social place in the Union. After its publication, resentment against the North expressed itself as accurate constitutional theory. If “Southern nationalism emerged when sizable numbers of Southerners began to perceive that their own set of shared interests were becoming increasingly incompatible with those of the rest of the Union,” the emergence of a sort of “national sentiment” in the South can be traced to the Exposition, which lucidly canvassed every major issue arising between the southern states and the federal government. It clarified for the first time the true meaning of nullification, building a systematic, logical, and eminently defensible framework solidly supporting the still vague opinions and protests of the South regarding issues of commerce and the nature of the Union.
In its economics, the Exposition was an outright free trade manifesto. The first part presented the country’s budget in strictly economic terms: the South, with a relatively small population, and the country’s principal exporter, was exploited by the North through having to pay exorbitant sums in order to protect New England industry and support the federal government.
So partial are the effects of the system, that its burdens are exclusively on one side and its benefits on the other. It imposes on the agricultural interest of the South … the burden not only of sustaining the system itself, but that also of the Government.
This unequal distribution between exported wealth and political representation underlay all injustices deriving from federal taxation: “the very acts of Congress … give them [Northern producers] the means … to command the industry of the rest of the Union.” Southern consumers, due to protectionism, paid exorbitant prices for the goods they consumed. In sum, “our complaint is, that we are not permitted to consume the fruits of our labor; but that, through an artful and complex system, in violation of every principle of justice, they are transferred from us to others.”
Calhoun incisively observed that the conflict caused by such redistribution would not merely ruin the South; in time it would likewise threaten northern workers, finally kindling a “class struggle” created by federal policy.
No system can be more efficient to rear up a moneyed aristocracy. Its tendency is, to make the poor poorer, and the rich richer. Heretofore, in our country, this tendency has displayed itself principally in its effects, as regards the different sections—but the time will come when it will produce the same results between the several classes in the manufacturing States. After we are exhausted, the contest will be between the capitalists and operatives; for into these two classes it must, ultimately, divide society. The issue of the struggle here must be the same as it has been in Europe.
Thus, at the heart of the crisis lay “improper intermeddling of the Government with the private pursuits of individuals, who must understand their own interests better than the Government.”
Calhoun fully grasped the direct relationship between consolidation of the Union (Hamiltonian total centralization) and use of government by northern interests. The collusion between big government and big business, which was squeezing the South dry, could only be blocked by opposing a centralized governmental apparatus able to define its own powers. Northern interests were solid and somewhat “legitimate,” but if they remade the federal government into a full-fledged centralized modern State, destruction of the Union would result. Interposition became the only possible remedy against abuses by a government increasingly stripped of all “federal” characteristics.
Amazingly, Tocqueville, concentrating in those same years on social and economic aspects (instead of power dynamics), failed to notice any “material interest one portion of the Union would have, for now, to separate from the others.” Rather, for him, all regions got along harmoniously: “The states of the South are nearly exclusively agricultural; the states of the North are particularly manufacturing and commercial; the states of the West are at the same time manufacturing and agricultural. […] These are the diverse sources of wealth. But in order to draw upon these sources, there is a means common and equally favorable to all; it is the Union.” Some southerners must have sincerely doubted the famous Frenchman’s analytical authority.
By contrast, Calhoun’s argumentation recognized the enormous diversity of interests within the United States (which the federal government should have mediated impartially) and the clear distinction between governmental power and sovereignty. “The present disordered state of our political system originated in the diversity of interests which exists in the country.” Yet the Constitution should have recognized and settled those differences in its federal division of power. The federal government was endowed with certain powers, explicitly enumerated in the Constitution, over which “ the States cannot, without violating the constitutional compact, interpose their authority to check, or in any manner to counteract its movements, so long as they are confined to the proper sphere.”
A total ban on interference held for the states too: “The peculiar and local powers reserved to the States are subject to their exclusive control; nor can the General Government interfere, in any manner, with them, without violating the Constitution.” The essence of the American compact is contained in this rigid arrangement, based on “a striking distinction between Government and Sovereignty.” While governmental powers belonged either to the institutions of the states or to those of the federal government, “the sovereignty resides in the people of the States respectively.” Ultimate constitutional authority lay with a supermajority of three quarters of the states “in whom the highest power known to the Constitution actually resides,” but “not the least portion of this high sovereign authority resides in Congress, or any of the departments of the General Government. They are but the creatures of the Constitution, and are appointed but to execute its provisions.”
Such a perfect system contained protections. According to Calhoun the federal government immediately equipped itself with a formidable weapon against the states’ excesses: Article 25 of the Judiciary Act (1789) made the United States Supreme Court the country’s court of last resort, which could in fact judge state laws vis-à-vis federal prerogatives. “By a strange misconception of the nature of our system” many believed that the Supreme Court could likewise judge opposite case, namely whether acts of the government or the federal Congress infringed rights reserved to the states. This would “raise one of the departments of the General Government above the parties who created the constitutional compact, and virtually invest it with the authority to alter, at its pleasure, the relative powers of the General and State Governments, on the distribution of which, as established by the Constitution, our whole system rests.”
Although the Jeffersonian party had adopted strict constitutional construction as a limit on federal excesses, Calhoun made it plain that no interpretive rule could ever really restrain the exercise of power: such rules amounted to the minority’s appeal to the majority’s sense of justice and moderation. As a great political realist, he maintained that historical experience had amply shown that “power can only be restrained by power, and not by reason and justice; and that all restrictions on authority, unsustained by an equal antagonist power, must forever prove wholly inefficient in practice.” The states alone could wield this power, and the remedy available to them was interposition: each state’s right separately to judge whether a federal intervention violated the Constitution.
The utmost guarantee against possible abuses of power was provided by the fact that the Constitution could only be amended only by (at least) three quarters of the states. Nullification, then, takes shape as the possibility that a single state could appeal to the supermajority — the highest constitutional authority. Nullification was thus entirely within the system, but it logically opens the way to revision of the constitutional pact, thus presenting each state with the dilemma whether to adhere to the new pact or withdraw from the Union.
3) Nullification and Secession
In August 1832 Calhoun sent an open letter to James Hamilton, the governor of South Carolina, in which he submitted “a fuller development of my view … on the right of a State to defend her reserved powers against the encroachments of the General Government.” Restating and expanding the arguments of the Exposition, Calhoun maintained that nullification was peaceful in nature and in no way hindered the prerogatives of the national government. Any controversy between a state and the federal government subsequent to an exercise of the right of nullification would be “a legal and constitutional contest, a conflict of moral, and not physical force – a trial of constitutional, not military power, to be decided before the judicial tribunals of the country, and not on the field of battle.” In the Exposition, his letter to Governor Hamilton, his Fort Hill Address, and his address on the Force Bill, Calhoun explicitly stated that nullification, or even the very threat of it, would suffice to dispose the conflicting governments to compromise.
By then the question of secession had arisen, becoming firmly embedded in the American debate. As one of Italy’s most influential historians of the American South emphasized, “No one in the United States, until the eve of the Civil War, held that secession was a crime, much less thought that the federal government would oppose it by the force of arms.” Here the Constitution was silent and the legitimacy or illegitimacy of secession by the states required reflection on the nature of the Union.
In Calhoun’s constitutional doctrine there is a peculiar relationship between nullification and secession, which the first attempt to put nullification into practice had made dramatically clear. A Calhounian secession theory seems implicit in the paradigm of state sovereignty and the Constitution as a contract between sovereigns.
Calhoun, in his Discourse on the Government and Constitution of the United States, published posthumously and largely incomplete, justified his interpretation of the Constitution as a contract between the states by referring back to the constitutional text and the work of the Constitutional Convention. As viewed by Webster and Story, the Constitution had substantively altered the nature of the American federation. While the Articles oversaw a simple alliance of sovereign states, the Constitution established a government endowed with autonomous existence and powers. Calhoun’s arguments drew instead on the continuity of political institutions. That the name “United States” designated both the alliance under the Articles and the succeeding relationship solidly demonstrated that “the political relation between these States, under their present constitution and government, is substantially the same as under the confederacy and revolutionary government; and what that relation was, we are not left to doubt; as they are declared expressly to be ‘free, independent and sovereign States’.”
The ratification process itself provided the final proof of Calhoun’s thesis: the constitutional Convention had submitted the Constitution to Congress, as the representatives of the member states “in their confederated character,” after which the agreement had to be ratified by each severally. The parties to the constitutional contract had thus participated as sovereign states, manifesting in all the possible modes in which it could be obtained: first—in their confederated character, through its only appropriate organ, the Congress; next, in their individual character, as separate States, through their respective State governments, to which the Congress referred it; and finally, in their high character of independent and sovereign communities, through a convention of the people, called in each State, by the authority of its government.
Interpretation of the Constitution as a compact was supported by Article VII, which established that the ratification of nine out of thirteen states was sufficient for it to enter into force “between the States so ratifying the Same.” “The authority which ordained and established the constitution, was the joint and united authority of the States ratifying it; and that, among the effects of their ratification, it became a contract between them; and, as a compact, binding on them—but only as such.” In brief, the states created a new system “as a compact between them, and not as a constitution over them.” Ratification had not altered the nature of the pact.
Calhoun did however recognize a significant difference between the system under the Articles of Confederation and that under the Constitution; but the changes were not in the foundations, but rather in the system’s superstructure, which expanded the general government’s role but in no way subverted the contractual nature of the federal system. While the federal government under the Articles resembled a “Standing Committee” of the states, a real and proper system of government now replaced the earlier semi-diplomatic institutions.
It is important to see how Calhoun’s logical conduit runs from the contractual theory of the Constitution and arrives at individual state sovereignty. For Calhoun, this is always the path that reveals state sovereignty: given the nature of the pact, only sovereign parties could have stipulated it. The necessary requirement of sovereignty had not made the Constitution a contract, rather, American constitutional history clearly showed the contract’s basis in state sovereignty. State sovereignty does not explain the Constitution: it is the nature of the latter that provides conclusive proof of the authentic locus of sovereignty in the system. If Calhoun has been defined as a “reverse Marx,” one could well argue from a juridical standpoint that the Carolinian was an “inverted Jean Bodin.” Sovereignty in his thought is not a “condition of conceivability” of a State, but of the pact between the states.
While the American Union’s nature is the true subject of Calhoun’s investigations, it is clear that secession must be addressed first narrowly, as related to nullification, and then as related to the nature of obligations arising from the federal pact.
In the aforementioned Letter to Governor Hamilton, Calhoun delved into the fundamentals. Who crafted the Constitution – the individual states or the “sovereign people”? Only two possibilities were widely believed in: that sovereignty rested with the entire population of the American Union, which made the Constitution the creation of a single, sovereign people—for which reason it would be absurd to speak of “States’ Rights” or a “right” of nullification, much less secession—or that the Constitution arose from the will of the states, from which a series of logical consequences followed. The Constitution was obviously the work of the states, which approved it as distinct political entities, independently from each other, and the Union was a union of sovereign states. In terms of sovereignty, the Constitution changed nothing. The states had only transferred the exercise of some additional sovereign powers to the federal government. This was evident from the very structure of the amending power conferred on a three-quarters majority of the states. All sovereignty thus resided in the individual states, while the exercise of sovereign power was shared through a pact delegating it partially to the federal government. Were the simple doctrine of state sovereignty the theoretical basis of secession, however, the state would be free to withdraw from the pact at any moment, and the Constitution would be indistinguishable from a private contract (which would never have the character of a political pact, even incidentally) – something Calhoun never said.
Calhoun instead posited secession as one of the constitutional forms of action that could follow upon nullification. The states were joint partners in the federation, and the federal government and administration existed to manage common affairs. Secession was withdrawal from the Union, a dissolving of the partnership. It was a solution to conflict between the joint members of the federation freeing individual partners from any further obligation. Secession however has nothing to do with the administrator — the federal government — but instead involved only relations between the states.
Nullification was not based on the members’ equality; it was, rather, a notice to the administration that one of its activities lacked validity because it exceeded the powers conferred upon it. Calhoun clarified the relationship between secession and nullification so effectively that his words deserve quotation at length:
One has reference to the parties themselves and the other to their agents. Secession is a withdrawal from the Union; a separation from partners, and, as far as depends on the member withdrawing, a dissolution of the partnership. […] Nullification, on the contrary, presupposes the relation of principal and agent; the one granting a power to be executed, the other appointed, by him, with authority to execute it; and is simply a declaration on the part of the principal, made in due form, that an act of the agent, transcending his power, is null and void.
Secession and nullification followed two very different lines of reasoning:
The object of secession is to free the withdrawing member from the obligation of the association or union; and is applicable to cases, where the intention of the association, or Union, has failed, either by an abuse of power on the part of its members, or by other causes. Its direct and immediate object, as it concerns the withdrawing member, is the dissolution of the association or union. On the contrary, the object of nullification is to confine the agent within the limits of his powers, by arresting his acts transcending them; not with the view of destroying the delegated or trust power, but to preserve it, by compelling the agent to fulfill the object for which the agency, or trust was created; and is applicable only to cases where the trust or delegated powers are transcended on the part of the agent.
To situate secession in Calhoun’s constitutional doctrine, one must remember that in Calhoun’s system withdrawal from the Union is external, but not foreign, to the constitutional system. By now it should be clear that a state’s right to withdraw does not simply derive from the contractual nature of the Union. Even if the Constitution is a contract, it has the characteristics of a political pact; this in turn creates a series of political obligations clearly distinguishable from merely contractual ones. In a nutshell, Calhoun held that the Constitution is contractual in nature, but in acceding to the pact, a state implicitly accepts the perpetuity of the Union in its political character. If the nature of the Union does not change, it is not permissible to withdraw from the Union itself. Accordingly, secession would not be impossible, but would amount to a Lockean appeal to Heaven; such cases would arise, not from the nature of the Union, but from the right of self-government of all communities of free human beings. In essence, a “pre-political” right of secession exists, shading over into the right of revolution; there are no significant differences on this point between Webster, Calhoun, Jackson, and the entire American tradition. Institutionalization of power does not eliminate the people’s right to rebel against a despotic government.
What matters here, however, is the right of “constitutional” secession, where Calhoun departs markedly from other theories. He could not accept the Webster-Story claim that the federal pact could “naturally” evolve into something profoundly different, without the contracting parties in active, creative control of the process. Indeed, the political obligations arising from a constitutional pact, such as America’s, cease when its terms are violated. Only within this conceptual framework can one understand the trajectory from the usurpation of a state’s right, to nullification, to calling the other co-equal partners to revise the constitutional pact, finally, to possible withdrawal from the Union. The primary function of nullification for Calhoun is not, in fact, antagonistic use of state power against the federal government; it is rather an appeal to the supreme federal power: the three-quarters majority of sovereign states. A state signals a de facto alteration in the nature of the Union, and thus of federal powers, by nullifying. The super-majority has the right to accept a different, more energetic, and powerful agent for managing common affairs. When the super-majority sustains the nullifying state, that state cannot legitimately secede.
But if the Constitution is no longer the same, after consultation, two paths are open to the nullifying state: accession to the modified contract, or withdrawal from the Union. Calhoun’s theory of secession rests within these rigorous conditions; secession is then precisely the withdrawal from the political obligations that the states voluntarily imposed on themselves, justified only by alteration of the constitutional compact.
Nullification, amending power and “constitutional” secession thus form distinct and somewhat conceptually independent parts of an indivisible whole. The internal consistency and correspondence of the system to the constitutional text is beyond question. Calhoun constructed a splendid ideal type of perfect federation — one of the major theoretical constructions derived from the American Constitution. He locates the engine of constitutional change in the supermajority’s amending power, not in a five–to–nine Supreme Court majority neither elected, nor representing any state. Such a jurisdictional method of fine-tuning, common in our day, was, however, historically dominant from the earliest years of the republic. The Supreme Court assumed the task constitutionally assigned to the states, and for over two hundred years narrow judicial majorities in Washington have weekly exercised the power to amend the Constitution. Government by judiciary has been the peculiar American answer to the problems posed, and never solved by the logic of authentic federalism. Continued relevance of Calhoun’s doctrine – the most lucid exposition of the mechanism of a true federation – will depend on the swinging pendulum of power in the United States, a pendulum whose motion in the large empire nation of today has not yet stopped.
