Inferences, Analogies, and Sophisms

Time and changes in the condition and constitution of society may require occasional and corresponding modifications. One single object, if your provision attains it, will entitle you to the endless gratitude of society, that of restraining judges from usurping legislation. And with no body of men is this restraint more wanting than with the judges of what is commonly called our general government, but what I call our foreign department. They are practicing on the constitution by inferences, analogies, and sophisms, as they would an ordinary law. They do not seem aware that it is not even a constitution, formed by a single authority, and subject to a single superintendence and control, but that it is a compact of many independent powers, every single one of which claims an equal right to understand it, and to require its observance. However strong the cord of compact may be, there is a point of tension at which it will break. A few such doctrinal decisions, as barefaced as that of the Cohens, happening to bear immediately on two or three of the large States, may induce them to join in arresting the march of government, and in arousing the co-States to pay some attention to what is passing, to bring back the compact to its original principles, or to modify it legitimately by the expressed consent of the parties themselves, and not by the usurpation of their created agents. They imagine they can lead us into a consolidate government, while their road leads directly to its dissolution. This member of the government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining, slyly and without alarm, the foundations of the constitution, can do what open force would not dare to attempt.

Thos. Jefferson to Edward Livingston, 25 March 1825.

A Political Paradox

It is certainly not a little remarkable, that what has been so often asserted to be impossible,—for a State to be both in and out of the Union at the same time,—so far from being true, is the very reverse,—the only true and constitutional position of a State being precisely that which the argument supposes to be impossible. A State is at all times, so long as its proper position is maintained, both in and out of the Union ;—in, for all constitutional purposes,— and out, for all others ;—in, to the extent of the delegated powers, and out, to that of the reserved. Any other position would be either consolidation on the one side, or disunion on the other; and the argument, if it be good for any thing, would prove that our federated system, which is justly our pride and boast, is but a political paradox. Nor would it be much short of an equal paradox, if the States, in truth, possessed no right—as those who maintain the argument contend—to resist an attempt to force them from their true federative, constitutional position,—of being in and out, into that of being entirely in, or entirely out, either of which (the disease—and the only admitted remedy, according to this view without withdrawing from the Union), would be equally destructive of the system. And yet, by a strange confusion of ideas, this very right of resisting an attempt to force a State from its constitutional position, and which is indispensable to the preservation of the system, is considered as incompatible with its existence!

John C. Calhoun, Report prepared for the Committee on Federal Relations of the Legislature of South Carolina, at its Session in November 1831.

The Government of the United States is a Compact Between the Sovereign Members Who Formed It

Jefferson Davis.

One of the fruitful sources, as I hold it, of the errors which prevail in our country, is the theory that this is a government of one people; that the government of the United States was formed by a mass; and therefore it is taken that all are responsible for the institutions and policies of each. The government of the United States is a compact between the sovereign members who formed it; and if there be one feature common to all the colonies planted upon the shores of America, it was the steady assertion of, and uncompromising desire for, community independence.

— Jefferson Davis, 7 May 1860.

Limited by the Plain Sense and Intention of the Instrument

From the Virginia Report of 1799:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.