Strictures on Nullification. Everett Alexander Hill

the form prescribed in the Constitution, for a grant of the power to pass such a law. Of all this the Constitution says not one word. If the passage which we have quoted from the exposition stood alone, we should, in fact, be entirely at a loss to know what the Vice-President means in this place by the form prescribed in the Constitution, as that in which the General Government is to apply to the States for a grant of new powers: but from other parts of the document, we gather that he alludes to the clause which prescribes a form for amending that instrument. Now it is undoubtedly true that the General Government might, if they should by constitutional majorities deem it expedient, recommend to the States an amendment, which, if carried, would have the effect of augmenting their powers; but it is equally certain that the clause, which provides a form for amending the Constitution, does not make it the duty of the General Government to recommend an amendment of this description in the case supposed by the Vice-President, or in any other. In this as in all its other parts, the Constitution is entirely silent upon the important duties which are supposed by the Vice-President to devolve upon the General Government, in consequence of the exercise by a State of its supposed right to annul an act of that Government. Are these duties to be imposed, and the rights and powers necessary to their execution conferred upon the General Government, by mere construction? Is it not a little singular, that the advocates of this very liberal construction are precisely the persons who are most decidedly opposed to all constructive powers, and whose principal object in all their present proceedings is to reduce, if necessary by main force, the constructive powers of the General Government to the narrowest possible compass?

      The Constitution, we repeat, is totally silent in regard to the powers attributed by the theory of nullification to the States and to the General Government. This fact might, perhaps, fairly be considered as of itself a sufficient and decisive objection to the whole system. Let us next inquire, how far these powers are in themselves susceptible of being exercised. If it shall appear that the duties which, according to this system, devolve respectively upon the States and the General Government are not only not prescribed in the Constitution, but are also physically and morally impracticable, there will arise a pretty strong presumption that it could not have been the intention of the framers of the Constitution that any such acts should be performed.

      The first step in the process is, as we have said, the annulling by the discontented State of the obnoxious act of the General Government. The State declares the act to be null and void, and takes measures to prevent the execution of it within its limits. How far this will be found a practicable operation we shall be better able to judge when we are informed of the proceedings of the Carolina Legislature. For the present, it may be sufficient to say that the various projects which have been successively recommended in the newspapers have been so obviously chimerical and visionary, as to render it altogether probable that no satisfactory scheme had suggested itself to the leaders, and very doubtful whether it would be possible to hit upon one. Without, however, anticipating what the wisdom of the Legislature may bring forth, let us proceed at once to the second step in the process; viz. the duties which devolve upon the General Government. This part of the theory, we may observe, though it has been less adverted to, is, in the opinion of the Vice-President, not less important and valuable than the other, and equally essential to the completeness of the system. If it be found impracticable, the whole theory must be given up.

      A State having nullified an act of the General Government, it then becomes the duty of the General Government to abandon the power (of passing such an act), and to apply to the States, in the form of proposing an amendment of the Constitution, for the grant of such a power. Let us see how far these duties are practicable.

      The General Government consists of three branches, the Executive, the Legislative, and the Judiciary, to each of which its peculiar and appropriate functions are assigned by the Constitution and the laws. What then is meant, when it is said that it becomes the duty of the General Government to abandon the power to pass a certain act, at least within the limits of a particular State? Is it meant that the Legislative department of the General Government is bound to repeal the obnoxious law, as respects that State or the Union at large? This is obviously impossible, because by the supposition the majority of the Legislature believe the act to be constitutional and expedient, – and therefore cannot conscientiously, in the ordinary exercise of the Legislative power, repeal it.

      Is it meant, that the Executive and Judiciary departments of the General Government shall suspend the execution of the law within the limits of the State in question? This again is equally impossible. The functions of the Executive and Judiciary departments are entirely administrative. The persons entrusted with them have no discretionary power. They are bound by their oaths of office to execute the laws that are given to them by the Legislature, and have no more right to augment or diminish them by one jot or tittle, than they have to declare themselves dictators of the country. The abandonment by the General Government of the power to pass the act complained of by the nullifying State is therefore a thing in itself entirely impracticable. Even the omnipotent Parliament of England, which, according to Lord Coke, can do any thing but convert a man into a woman, could not repeal a law which was sustained by a majority of its members; nor could even the hereditary executive power of England or any other constitutional monarchy suspend for a moment the execution of a law, which is still in force. The thing is in its nature a moral impossibility.

      So much for the first part of the two-fold duty, which, according to the Vice-President, devolves upon the General Government, in the event of the nullification by a State of a law of the United States. But the General Government is not only bound to abandon the disputed power, but also to apply to the States, in the form provided for amending the Constitution, for a grant of that power. We have seen that the first of these supposed duties is in its nature impracticable. It is obvious to the slightest reflection, that the other is not less so. By the General Government the Vice-President must of course intend, in this connexion, the Legislative department of the Government, the Executive, as such, having nothing to do with the process of amendment. Now, independently of the objection to which we have already adverted, viz. that the Constitution imposes no such duty on the Legislature, it is plain that the operation is in itself impracticable, for the same reason which would prevent the repeal of the obnoxious act. The Legislature cannot recommend an amendment of the Constitution, giving to itself the power to pass such an act, for the plain reason, that by the supposition a majority of the members believe that the Legislature already possess the power, and that it is consequently impracticable for them to adopt, on their official responsibility, a measure which implies that they believe the contrary.

      It is only necessary to consider for a moment how the plan would work in detail, in order to be convinced that it is utterly impracticable. It becomes the duty of the General Government, by which we will suppose the Vice-President to mean the Legislature, to apply to the States for a grant of the disputed power. But what is the Legislature? The Legislature is a complex being, composed of the President and two elective assemblies, comprehending two hundred and eighty-five persons. It is the duty, it seems, of these two hundred and eighty-five persons, in their political capacity, to apply to the States for a grant of new powers. But who is to move? What is the business of every body is the business of nobody. Shall it be the President? The Constitution makes it the duty of the President to recommend from time to time to the consideration of Congress such measures, as he shall judge necessary and expedient. But the President, by the supposition, believes that the General Government already possess the power in question. It is impossible, therefore, that he should recommend to Congress to propose an amendment conferring this power. For the same reason, the proposition cannot be made in Congress by a member of the majority of either House. The duty, such as it is, of making the proposition, might no doubt be performed by some member of the minority of one of the two branches. But how are the majority to vote for a proposition which they do not approve? How is the President to approve a law which he does not approve? Individuals occasionally support or oppose measures for particular reasons, which have no reference to their own opinion upon their merits; but in arguing on general principles, it must of course be assumed that the members of the Government can only act on principle. The operation supposed is therefore in its nature essentially impracticable.

      Indeed the supposition that it can in any case be the duty of one or more individuals to do an act which, if done by them at all, must be done in pursuance of their own free and unbiased belief in its expediency, is so obviously