142 Right of Nullification (1833)
The great question at issue is, where is the paramount power? Where the sovereignty in this complex but beautiful and admirable system (if well understood) is lodged? For where the sovereignty is, there too must be the paramount power. A few plain, simple, and incontrovertible positions will determine this point. That the people of the States as constituting separate communities formed the constitution is as unquestionable as any historical fact whatever. It stands upon the most durable and unquestionable record — as much so as the records of any court in the universe. And that the Union of which the constitutional compact is the bond, is a union between States and not between a mere mass of individuals, rests on authority not less high. On the constitution itself, which expressly declares in the article of ratification that it shall be binding between the States ratifying the same. Words more explicit, he would say technical, could not be devised. Yet, as certain as these facts are, they cannot be admitted without admitting the doctrines for which South Carolina contends. They, by the most certain and direct deduction, conclusively will show where the paramount power of the system is — where its sovereign authority resides.
No one will pretend that the sovereignty is in the Government. To make that assertion would be to go back to the Asiatic idea of government. It is scarcely European, as the most intelligent writers in that section of the globe long since traced sovereignty to a higher source. No, the sovereignty is not in the Government, it is in the people. Any other conception is utterly abhorrent to the ideas of every American. There is not a particle of sovereignty in the Government. If, then, it be in the people, which cannot be denied unless by extinguishing the lights of political science for more than two thousand years, the only possible question that can remain is, in what people? In the people of the United States collectively, as a mass of individuaIs, or in the people of the twenty-four states as forming distinct political communities, confederated in this Union? The facts already published decide this question and prove the sovereignty to be in the people of the several States. No such community ever existed as the people of the United States forming a collective body of individuals in one nation. And the idea that they are so united by the present constitution as a social compact, as alleged by the proclamation, is utterly false and absurd. To call the constitution the social compact is the greatest possible abuse of language. No two things are more dissimilar. There is not an expression in the whole science of politics more perfectly definite in its meaning than the social compact. It means that association of individuals, founded on the implied assent of all its members, which precedes all Government and from which Government or the constitutional compact springs. And yet the President, in the daring attempt to put down our federal system, has ventured to confound things so totally dissimilar. The sovereignty then, is in the people of the several States, united in this federal Union. It is not only in them but in them unimpaired. Not a particle resides in the Government; not one particle in the American people collectively.
The people of the States have indeed delegated a portion of their sovereignty to be exercised conjointly by a General Government and have retained the residue to be exercised by their respective State Governments. But to delegate is not to part with or to impair power. The delegated power in the agent is as much the power of the principal as if it remained in the latter and may, as between him and his agent, be controlled or resumed at pleasure. Now mark the consequence.
No one can deny that the act of the sovereign binds the citizen or subject. The latter is not individually responsible for the act of the political community of which he is a member and to which he owes allegiance. The community only is responsible. This is a principle universally recognized. But without regarding a principle so obvious — formed upon the highest sense of justice — this bill proposes to make the citizen of South Carolina individually responsible for the sovereign acts of the State to which he owes his allegiance! An outrage more than barbarian upon the fundamental principle of political institutions as has ever been recognized by all people so far advanced in civilization as to be formed into political communities. None can doubt that the convention of the people of South Carolina is the true organ of her sovereignty. According to our American ideas sovereignty, instead of lying dormant in the mass of individuals composing a State, and instead of being capable of being called into action by a revolutionary movement only, has a known, organic, and peaceable means of action. That means is a convention of the people. Through its instrumentality all of our constitutions, State and Federal, were formed and ratified. Through the same authentic voice the people of South Carolina spoke in her late ordinance which, as far as her citizens are concerned, is not less obligatory than the constitution itself.
It is to see that under this aspect of the subject, this bill presents a question infinitely beyond that of the tariff or its constitutionality, of nullification, or whether the Supreme Court is the tribunal appointed by the constitution to decide questions in controversy between the State and Federal Governments. It sweeps away the whole of these questions. It may be admitted to illustrate this idea that the tariff is constitutional, that the Supreme Court is the authority appointed by the constitution to judge questions in conflict between the State and Federal Governments, and yet this bill cannot be justified. High as the authority of the court may be, its powers are but delegated powers: it makes a part of the Government itself and like every other portion of the Government is destitute of the least particle of sovereign power. As delegated powers may be resumed by the sovereign delegating the same, such a resumption may be a breach of compact — a violation of the faith of the State. But even in that case, the State as a community and not its citizens individually is liable. The State as a community can break no law. It can as a sovereign body be subject to none. It may pledge its faith, it may delegate its powers, it may break the one and resume the other. But the remedy in such cases is not hostile enactments, not law by which the citizens individually are made responsible, as the bill most absurdly and preposterously proposes, but open force, war itself, unless there be some provision of a remedial and peaceful character provided in the compact.
The illustrious men who framed our constitution were too wise and patriotic to admit of the introduction of force. In constituting a federal system, they had too profound a knowledge of the human heart, too deep an insight into history, not to perceive that the introduction of force into such a system must necessarily lead to a military despotism. The fabric is too delicate to stand its rude shock. They devised as a substitute a far more effectual and peaceful means; one much more consonant to the advanced progress of political science and civilization. He alluded to the provision by which all contests for power between the Federal Government and the States may be virtually decided in a convention of the States. That is the true, wise, and constitutional means of terminating this controversy. Let the States be convened in convention. Let the stockholders, if he might be permitted so to express himself, of this great political partnership be called together that all conflicts of power between the directors and any portion of the stockholders may be determined in conformity to the provisions prescribed in the charter of association.
If, then, in a case supposed (where for the sake of the argument the constitutionality of the tariff is conceded and with the same view the authority claimed for the Supreme Court acknowledged), there would be no right to pass this bill of pains and penalties on the citizens of South Carolina for adhering to their allegiance to the State, how much stronger must be the objection to its passage when we advert to the fact that it is not a case of resumption of power delegated to the Government, but the defense of reserved powers against unconstitutional encroachment. So far from conceding the constitutionality of the tariff or the powers claimed for the Supreme Court, not only the State of South Carolina but all the Southern States believe it to be not only unconstitutional but highly oppressive. And that the Supreme Court, so far from being the tribunal appointed to decide political controversies, is limited by the constitution itself to cases arising in law and equity and, of course, where the parties are amenable to its process.
Source: Congressional Debates, 22nd Congress, 2nd session (1833), IX, part i, 188-190. https://archive.org/details/toldcontemporari03hartrich/page/544/mode/2up
