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Defending the Union: Andrew Jackson's Nullification Proclamation and American Federalism

Published online by Cambridge University Press:  28 April 2011

Matthew S. Brogdon
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Abstract

This essay contends that we can better understand Andrew Jackson's distinctive account of federalism by looking outside the Jeffersonian and Jacksonian political traditions. More appropriate peers for Jackson, as a constitutional statesman, are John Marshall and Abraham Lincoln. Existing treatments of Jackson miss these connections because they focus primarily on his roles as party leader and reformer, to the neglect of his constitutional statesmanship. A major cause of this neglect is the apparent inconsistency between Jackson's “nationalist” account of the Union in the Nullification Proclamation and his advocacy of “states' rights” elsewhere, a tension that can be resolved by a closer reading of Jackson's rhetoric. Among other things, this redefinition of Jackson's legacy demonstrates that there is no necessary tension between a strong union and meaningful limits on federal power; nor is there a necessary affinity between narrow construction of federal power and state-compact theory.

Type
Research Article
Information
The Review of Politics , Volume 73 , Issue 2 , Spring 2011 , pp. 245 - 273
Copyright
Copyright © University of Notre Dame 2011

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References

1 “Statesman,” as used in this article, should be understood as a gender-neutral term.

2 By focusing on the question of federalism, this discussion is the first step in a reassessment of Jackson's place in American constitutional development. His construction of separation of powers was also prescient and, like his account of the union, has continuing relevance for the American political order. Surprisingly, though, competent treatments of Jackson's contribution to separation of powers have been limited primarily to tangential discussions in broader analyses of the presidency. See, e.g., Nichols, David K., The Myth of the Modern Presidency (University Park, PA: Penn State University Press, 1994)Google Scholar, chaps. 1 and 4.

3 Jackson, Andrew, “Proclamation,” December 10, 1832, in A Compilation of the Messages and Papers of the Presidents, ed. Richardson, James D. (New York: Bureau of National Literature, 1897)Google Scholar, 3:1203–19.

4 Of course, nothing that Jackson had said or done with respect to Georgia's defiance in the face of the Worcester decision or in opposition to the national bank denied either the validity or the finality of judicial review. See, e.g., Longaker, Richard P., “Andrew Jackson and the Judiciary,” Political Science Quarterly 71, no. 3 (1956): 341–64CrossRefGoogle Scholar.

5 Joseph Story to Sarah Waldo Story, January 25, 1833, in Life and Letters of Joseph Story, ed. Story, William Whetmore (Boston: Little and Brown, 1851)Google Scholar, 2:119.

6 Clay to Brooke, Francis, December 12, 1832, in Private Correspondence of Henry Clay, ed. Colton, Calvin (New York: A. S. Barnes, 1855), 344–45Google Scholar.

7 Ellis, Richard E., The Union at Risk: Jacksonian Democracy, States' Rights and the Nullification Crisis (New York: Oxford University Press, 1987)Google Scholar, 84 and 179.

8 Cole, Donald B., The Presidency of Andrew Jackson (Lawrence: University Press of Kansas, 1993)Google Scholar, 161 and 179.

9 McDonald, Forrest, States' Rights and the Union: Imperium in Imperio, 1776–1876 (Lawrence: University Press of Kansas, 2000), 107–9Google Scholar.

10 Schlesinger, Arthur M. Jr., The Age of Jackson (Boston: Little, Brown, 1950), 95–97Google Scholar.

11 Benedict, Michael Les, “Abraham Lincoln and Federalism,” Journal of the Abraham Lincoln Association 10, no. 1 (1988): 11Google Scholar.

12 Remini, Robert V., Andrew Jackson and the Course of American Democracy, 1833–1845 (New York: Harper and Row, 1984), 16–23Google Scholar; Brands, H. W., Andrew Jackson: His Life and Times (New York: Doubleday, 2005), 475–82Google Scholar.

13 Stampp, Kenneth M., “The Concept of a Perpetual Union,” Journal of American History 65, no. 1 (1978): 5–33CrossRefGoogle Scholar.

14 See, e.g., Whittington, Keith E., Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, MA: Harvard University Press, 1999)Google Scholar, chap. 3.

15 The message is generally known as the South Carolina Protest, which the legislature adopted in December of 1828 to express the state's disapprobation of the new tariff law. Calhoun, then vice president to John Quincy Adams and Jackson's vice president-elect, secretly drafted the document. The Protest was prefigured by an anonymous report known as the South Carolina Exposition, one draft of which was written in Calhoun's own hand. For a brief discussion of Calhoun's connection to the Exposition and Protest, see Lence, Ross M., ed., Union and Liberty: The Political Philosophy of John C. Calhoun (Indianapolis: Liberty Fund, 1992), 311–12Google Scholar.

16 John C. Calhoun, “Rough Draft of What Is Called the South Carolina Exposition,” in Union and Liberty, 313 and 348 (hereafter cited as “South Carolina Exposition”).

17 Calhoun, “South Carolina Exposition,” 348.

18 Speech of Hayne, Robert Y., January 27, 1830, in The Webster-Hayne Debate on the Nature of the Union, ed. Belz, Herman (Indianapolis: Liberty Fund, 2000)Google Scholar, 165.

19 Hayne continued: “All sovereigns are of necessity equal, and any one State, however small in population or territory, has the same rights as the rest, just as the most insignificant nation in Europe is as much sovereign as France, or Russia, or England” (ibid., 166).

20 Ibid.

21 Speech of Daniel Webster, January 26 and 27, 1830, in Webster-Hayne Debate, 126.

22 Ibid.

23 Ibid., 137.

24 See the speech of Robert Y. Hayne, in Webster-Hayne Debate, 167.

25 See, for example, the closing passage of Webster's second reply to Hayne, in Webster-Hayne Debate, 143–44.

26 See note 6 above and accompanying text.

27 Speech of Edward Livingston, March 9, 1830, in Webster-Hayne Debate, 459.

28 See Hamilton, Alexander, Madison, James, and Jay, John, The Federalist, ed. Cooke, Jacob E. (Middletown, CT: Wesleyan University Press, 1961), 250–57CrossRefGoogle Scholar.

29 Speech of Edward Livingston, in Webster-Hayne Debate, 461.

30 Ibid., 462. As Whittington writes of Livingston's speech to the Senate, “Instead of emphasizing the unity of the people in a single nation, Livingston thought it was sufficient to establish the strength of the Union to emphasize the general government's power of enforcement, including the constitutional recognition of treason as a federal crime. The President was obliged to enforce the laws of the general government, and if any form of resistance to those laws was a reserved power of the state, then there should be a correlative federal duty to respect those rights laid out in the Constitution. Instead, the federal enforcement power was absolute” (Whittington, Constitutional Construction, 85–86).

31 Speech of Edward Livingston, in Webster-Hayne Debate, 462.

32 John C. Calhoun, “The Fort Hill Address,” July 26, 1831, in Union and Liberty, 367–400.

33 Jackson wrote to Congress, “Should the exigency arise rendering the execution of the existing laws impracticable from any cause whatever, prompt notice of it will be given to Congress, with a suggestion of such views and measures as may be deemed necessary to meet it” (Andrew Jackson, “Fourth Annual Message,” December 4, 1832, in Messages and Papers of the Presidents 3:1162).

34 Ibid., 1161.

35 See text accompanying notes 6 and 7 above.

36 Jackson, “Proclamation,” 1215. For an account of the resulting compromise that ended the crisis, see Peterson, Merrill D., Olive Branch and Sword: The Compromise of 1833 (Baton Rouge, LA: Louisiana State University Press, 1982)Google Scholar.

37 See text accompanying notes 18–20 above.

38 Jackson, “Proclamation,” 1205.

39 Ibid., 1211.

40 Jackson to Van Buren, Martin, December 23, 1832, in Correspondence of Andrew Jackson, ed. Bassett, John Spencer, vol. 4 (Washington, DC: Carnegie Institution, 1929)Google Scholar, 504.

41 Remini, Andrew Jackson and the Course of American Democracy, 21.

42 Jackson, “Proclamation,” 1206.

43 Ibid., 1213.

44 Ibid., 1206.

45 Martin Van Buren to Jackson, December 27, 1832, in Correspondence of Andrew Jackson 4:507.

46 Marshall to Story, Joseph, December 25, 1832, in The Papers of John Marshall, ed. Hobson, Charles F., vol. 12 (Chapel Hill: University of North Carolina Press, 2006)Google Scholar, 248.

47 See, for example, Hamilton, Federalist, No. 78, in The Federalist, 524–26; McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 402–6 (1819).

48 Benedict, “Abraham Lincoln and Federalism,” 19.

49 Jackson, “Proclamation,” 1206.

50 Articles of Confederation, art. XIII.

51 Jackson, “Proclamation,” 1206.

52 Ibid., 1213.

53 Whittington, Constitutional Construction, 85–86.

54 The distinction between Livingston and Jackson on the matter of popular sovereignty is also critically important because it helps to demonstrate Jackson's control over the argument of the proclamation. For a detailed account of the drafting of the proclamation and Jackson's agency in crafting its argument, see Remini, Andrew Jackson and the Course of American Democracy, 16–23.

55 Jackson, “Proclamation,” 1206.

56 Ibid., 1212.

57 See, for example, Jackson's defense of the independence and unity of the executive in his protest message to the Senate following the removal of government deposits from the national bank (Andrew Jackson, “Protest,” in Messages and Papers 3:1288–1312).

58 Prompted by similar concerns, Madison included “want of ratification by the people” in his list of the defects of the Articles of Confederation. Without a foundation in popular consent, Madison warned, the Union was susceptible to the twin evils of nullification and secession. Popular ratification would be the primary remedy. See Madison, James, “Vices of the Political System of the United States,” April 1787, in James Madison: Writings, ed. Rackove, Jack N. (New York: Library of America, 1999), 73–74Google Scholar.

59 Marshall to Joseph Story, July 31, 1833, in Papers of John Marshall 12:291.

60 Jackson, “Proclamation,” 1211.

61 Articles of Confederation, art. II.

62 US Constitution, amend. X.

63 The most commonly cited source for this interpretation of the Tenth Amendment is Marshall's opinion in McCulloch v. Maryland, 17 U.S. at 406–7. For a critique of Marshall's argument, see Lash, Kurt T., “The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty, and ‘Expressly’ Delegated Powers,” Notre Dame Law Review 83, no. 5 (2008): 1889–1956Google Scholar.

64 Jefferson, Thomas, “Opinion on the Constitutionality of the Bill for Establishing a National Bank,” in The Papers of Thomas Jefferson, ed. Boyd, Julian P. et al., vol. 19 (Princeton: Princeton University Press, 1974), 275–80Google Scholar.

65 Ibid., 277–78.

66 Ibid., 279.

67 Andrew Jackson, “Veto Message,” May 27, 1830, in Messages and Papers 3:1050. One problem with this interpretation of Jackson is his occasional use of the term “expressly” when speaking of the delegated powers of the federal government. See, for example, the quotation accompanying note 40 above. Jackson's use of the term ignores, on its face, the substantive change between the Articles of Confederation and the Tenth Amendment. There are at least two plausible explanations for this. Perhaps Jackson considered the Necessary and Proper Clause to be an express delegation of authority to Congress, albeit an express delegation of implied powers. Or, more plausibly in my view, Jackson's use of the word was merely a shorthand—and inaccurate—way of articulating the fact that he took the delegated character of federal power seriously, unlike Clay and Webster who seemed to equate implied powers with a general police power.

68 McCulloch, 17 U.S. at 421.

69 Jackson, “Veto Message,” 1050–51.

70 See Kelly, Alfred H., Harbison, Winfred, and Belz, Herman, The American Constitution: Its Origins and Development, 7th ed. (New York: Norton, 1999)Google Scholar, 202.

71 James K. Polk, “Veto Message,” August 3, 1846, in Messages and Papers 6:2310; see also Polk, “Veto Message,” December 15, 1847, in Messages and Papers 6:2460, and “Fourth Annual Message,” December 5, 1848, in Messages and Papers 6:2506.

72 Polk, “Veto Message,” in Messages and Papers 6:2312, 2314.

73 Ibid., 2314.

74 Currie, David, The Constitution in Congress: Democrats and Whigs, 1829–1861 (Chicago: University of Chicago Press, 2005)CrossRefGoogle Scholar, 16.

75 Franklin Pierce, “Veto Message,” December 30, 1854, in Messages and Papers 7:2798.

76 Currie, The Constitution in Congress, 19–24, 33–36.

77 Jackson, “Veto Message,” 1146. As Longaker explains at greater length, Jackson did not take a position in the bank veto on the finality of the Court in striking down a federal law; he merely denies its finality in upholding one. Thus, he does not take a position on whether the executive may nonetheless enforce a law after the judiciary declares it unconstitutional. See Longaker, “Andrew Jackson and the Judiciary.”

78 There is a possible tension between Jackson's argument and Marshall's opinion. Jackson claims that, by finding the bank to be an unnecessary and improper means of pursuing the objects entrusted to the government, he is declaring it unconstitutional. He assumes that the Necessary and Proper Clause is not merely a grant of discretion to the political branches, as Marshall suggests, but an enforceable constitutional standard. The clause is not judicially enforceable because its language is too ambiguous to admit of a legal construction. The practical consequence of these two positions, at least in the case of the Necessary and Proper Clause, is the same.

79 McCulloch, 17 U.S. at 423.

80 I am indebted to one of the anonymous reviewers for observing that my thesis may explain Jackson's appointment of Supreme Court Justices John McLean and James M. Wayne. Scholars often assume that these two appointments were mistakes given their divergence from later Jacksonian presidents and from Chief Justice Roger B. Taney on the issues of slavery and federal economic power. See, e.g., Remini, Andrew Jackson and the Course of American Democracy, 266–69. Calling them mistakes assumes, of course, that Taney and the Jacksonian presidents were the true heirs to Jackson's constitutional views, a premise this article challenges. Exploration of their jurisprudence and its connection with Jackson's constitutional arguments would form a fruitful object of analysis, but must be left for another essay.

81 Abraham Lincoln, first inaugural address, March 4, 1861, in Messages and Papers 7:3208.

82 Ibid.

83 Ibid.

84 Ibid.

85 It was on this point that Albert J. Beveridge grudgingly noted the resemblance between Lincoln's first inaugural and the rhetoric of the Nullification Proclamation. “Gently, but firmly, and with tremendous force,” Beveridge writes, “in the style and spirit of Abraham Lincoln rather than of Andrew Jackson, the Proclamation makes clear that the national laws will be executed and that resistance to them will be put down by force of arms” (Beveridge, The Life of John Marshall [Boston: Houghton Mifflin, 1919], 4:563). Beveridge did not intend his remark as a compliment to Jackson; he saw the proclamation as an anomalous exercise of sound reasoning and sober judgment by a man otherwise at the mercy of his own passions. But such skepticism of Jackson's motives and abilities is misguided.

86 Holzer, Harold, Lincoln President-Elect: Abraham Lincoln and the Great Secession Winter 1860–1861 (New York: Simon and Schuster, 2008), 255–56Google Scholar.

87 Only later, Herndon writes, did Lincoln call for Webster's reply to Hayne. See Herndon, William H. and Weik, Jesse W., Herndon's Lincoln: The True Story of a Great Life (Chicago: Belford-Clarke, 1890)Google Scholar, 3:478. As the foregoing discussion of the content of Lincoln's speech shows, the argument and style of the speech owed more to Jackson than it did to Webster.

88 Commenting on the reaction of Virginia Democrats to the proclamation, John Marshall noted that many of them “pass[ed] by [Jackson's] denunciation of all their former theories; and, though they will not approve the sound opinions avowed in his proclamation, are ready to denounce nullification, and to support him in maintaining the union” (Marshall to Joseph Story, December 25, 1832, in Papers of John Marshall 12:248).

89 Neither this fact nor the quotations that follow are meant to suggest that Lincoln favored Jackson over Clay, with whom he quite explicitly identified himself throughout his career.

90 Abraham Lincoln, speech at Princeton, Illinois, July 4, 1856, in The Collected Works of Abraham Lincoln, ed. Basler, Roy P. (Springfield, IL: Abraham Lincoln Association, 1953)Google Scholar, 2:346.

91 Abraham Lincoln, reply to Baltimore Committee, April 22, 1861, in Collected Works of Abraham Lincoln 4:341.

92 Jaffa, Harry V., Crisis of the House Divided: An Interpretation of the Lincoln-Douglas Debates (Seattle: University of Washington Press, 1959)Google Scholar, 223.

93 Abraham Lincoln, address before the Young Men's Lyceum of Springfield, Illinois, January 27, 1838, in Collected Works of Abraham Lincoln 1:109–12.

94 Ibid., 112.

95 Remini, Andrew Jackson and the Course of American Democracy, 17. Though it is not within the scope of this article to address the accuracy of Jeffrey Tulis's rhetorical-presidency thesis, Jackson's leadership in the nullification crisis—and on a number of other occasions—does demand further examination as an early specimen of plebiscitary leadership by the president. See Tulis, Jeffrey K., The Rhetorical Presidency (Princeton: Princeton University Press, 1987)Google Scholar.