Letter from James Madison to Daniel Webster, March 15, 1833
"I return my thanks for the copy of your late very powerful Speech in the Senate of the United S. (Note: I believe Madison refers to Webster's 2nd reply to Haynes during the nullification debate) It crushes "nullification" and must hasten the abandonment of "Secession." But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy. Its double aspect, nevertheless, with the countenance rec’d from certain quarters, is giving it a popular currency here which may influence the approaching elections both for Congress & for the State Legislature. It has gained some advantage also, by mixing itself with the question whether the Constitution of the U.S. was formed by the people or by the States, now under a theoretic discussion by animated partisans.
"It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as embodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity. They might, by the same authority & by the same process have converted the Confederacy into a mere league or treaty; or continued it with enlarged or abridged powers; or have embodied the people of their respective States into one people, nation or sovereignty; or, as they did by a mixed form, make them one people, nation, or sovereignty, for certain purposes, and not so for others.
"The Constitution of the U.S. being established by a competent authority, by that of the sovereign people of the several States who were the parties to it, it remains only to inquire what the Constitution is; and here it speaks for itself. It organizes a Government into the usual Legislative, Executive & Judiciary Departments; invests it with specified powers, leaving others to the parties to the Constitution; it makes the Government like other Governments to operate directly on the people; places at its Command the needful Physical means of executing its powers; and finally proclaims its supremacy, and that of the laws made in pursuance of it, over the Constitutions & laws of the States; the powers of the Government being exercised, as in other elective & responsible Governments, under the control of its Constituents, the people & legislatures of the States, and subject to the Revolutionary Rights of the people in extreme cases.
"It might have been added, that whilst the Constitution, therefore, is admitted to be in force, its operation, in every respect must be precisely the same, whether its authority be derived from that of the people, in the one or the other of the modes, in question; the authority being equally Competent in both; and that, without an annulment of the Constitution itself its supremacy must be submitted to.
"The only distinctive effect, between the two modes of forming a Constitution by the authority of the people, is that if formed by them as embodied into separate communities, as in the case of the Constitution of the U.S. a dissolution of the Constitutional Compact would replace them in the condition of separate communities, that being the condition in which they entered into the compact; whereas if formed by the people as one community, acting as such by a numerical majority, a dissolution of the compact would reduce them to a state of nature, as so many individual persons. But whilst the Constitutional compact remains undissolved, it must be executed according to the forms and provisions specified in the compact. It must not be forgotten, that compact, express or implied, is the vital principle of free Governments as contradistinguished from Governments not free; and that a revolt against this principle leaves no choice but between anarchy and despotism."
Before too many people jump up and down and exult, "See there, Madison approves of secession. This argument is devestating!", let's review what Madison really said:
First, there are two forms of secession. One form is secession due to "intolerable oppression," another name for which is "revolution," and about which there is no "theoretic controversy."
The second form of secession Mdison termed "secession at will," or what we have called on this thread "unilateral secession". Madison termed secession at will to be a "violation, with cause, of a faith solemnly pledged." (Using your criteria, we must now refer to Madison as a "mystic."). Mystic Madison continued, in the next paragraph to refer to "secession at will" (along with "nullification") as "disputed theories."
It is safe to say that Madison was no admirer of unilateral secession. But this is not surprising, because Madison held these views for most of his adult life. As far back as the mid-1780's when he was studying past forms of government, in anticipation of developing a new form of government to replace the failing confederation under the Articles, Madison made these notes:
"8. In some of the States the Confederation is recognized by and forms a part of the Constitution. In others, however, it has received no other sanction than that of the legislative authority. From this defect two evils result:
1. Whenever a law of a State happens to be repugnant to an act of Congress, particularly when the latter is of posterior date to the former, it will be at least questionable whether the latter must not prevail; and as the question must be decided by the Tribunals of the State, they will be most likely to lean on the side of the State.
2. As far as the union of the States is to be regarded as a league of sovereign powers, and not as a political Constitution, by virtue of which they are become one sovereign power, so far it seems to follow, from the doctrine of compacts, that a breach of any of the articles of the Confederation by any of the parties to it absolves the other parties from their respective obligations, and gives them a right, if they choose to exert it, of dissolving the Union altogether."
In part 2 of Note 8, Madison bemoans the power of the States relative to the powers of the Confedral government. Madison points out the inherent danger posed to the infant nation by the "right to dissolve the Union." I put it to you, that Madison is considering the fundamental relationship between a "general" (read national, federal) government and subordinate State governments. He calls this "defect" an "evil."
Now, does it make any sense to you that Madison, probably the principal architect of the Constitution of 1787, would have into the Constitution written, implied, or allowed principles he considered defective and evil? It boggles the imagination.
I am familiar with Mr. Jackson’s Proclamation (in fact, you will find a link to the document on my FR homepage ;>). Unfortunately, you cut your quotation just a bit short: finding no credible support for his argument within the Constitution, Mr. Jackson attempted to justify his position by citing an extra-constitutional, governmental ‘right of “self-defense.” Such a right – if it existed – would justify not only the use of armed force against seceding States, but almost any other act that a government might consider to be contrary to its own interests.
"Southerner" Andrew Jackson may have been; 'strict constitutional constructionist' he obviously was not...
;>)
And as another American president noted with regard to the same constitutional crisis:
Yes, sir, "the Federal Union must be preserved." But how? Will you seek to preserve it by force? Will you appease the angry spirit of discord by an oblation of blood? Suppose that the proud and haughty spirit of South Carolina shall not bend to your high edicts in token of fealty; that you make war upon her, hang her governor, her legislators, and judges, as traitors, and reduce her to the condition of a conquered province - have you preserved the Union?
This Union consists of twenty-four States; would you have preserved the Union by striking out one of the States - one of the old thirteen? Gentlemen had boasted of the flag of our country, with its thirteen stars. When the light of one of these stars shall have been extinguished will the flag wave over us, under which our fathers fought? If we are to go on striking out star after star, what will finally remain but a central and a burning sun, blighting and destroying every germ of liberty? The flag which I wish to wave over me is that which floated in triumph at Saratoga and Yorktown. It bore upon it thirteen States, of which South Carolina was one.
Sir, there is a great difference between preserving union and preserving government; the Union may be annihilated, yet government preserved; but, under such a government, no man ought to desire to live.
John Tyler, ‘Comments Regarding the Force Bill,’ 1832
I find myself more in agreement with President Tyler than President Jackson: “there is a great difference between preserving union and preserving government;” we now have our "central and... burning sun," fully capable of "blighting and destroying every germ of liberty;" and a union maintained by force ceases to be a union.
Let me add quickly, before I have to leave for a few hours, this following observation by James Madison, late in his life:
Letter from James Madison to Daniel Webster, March 15, 1833
And I am quite familiar with this letter as well (you will find links to several of Mr. Madison’s public documents & personal letters at my FR homepage ;>).
Before too many people jump up and down and exult, "See there, Madison approves of secession. This argument is devestating!"
Actually, the comments are somewhat less than ‘devastating.’ An examination of Mr. Madison’s public writings and official documents reveals a somewhat different picture than the one you attempt to paint. For example, during the debates in the federal convention (May 31, 1787), he stated that the use of federal military force against a State would be considered grounds for secession; in Federalist No. 43, he acknowledged the right of the ratifying States to secede from the union formed under the ‘Articles of Confederation and Perpetual Union;’ and in Federalist No. 46, he discussed the right of the States to use armed force (State militias) to oppose unconstitutional federal actions. It might well be said that James Madison ‘sold’ the Constitution to the people of the States by suggesting that actions comparable to those of the future Confederate States would be entirely constitutional.
Following ratification, Mr. Madison continued to present his views in official government documents. In the Virginia Resolutions of 1798, for example, he discussed the right of the State governments to ‘arrest the progress’ of unconstitutional federal actions; two years later, in his Report on the Virginia Resolutions, he defended the right of the States to judge whether federal actions were constitutional – including the actions of the high court.
(If you do indeed prefer Mr. Madison’s private correspondence to his official public writings, you may wish to read his letters to Spencer Roane, regarding the activist & over-reaching Marshall court; and his letter to Robert Walsh, regarding the lack of any federal power to interdict slavery in the territories. ;>)
In summary, a single opinion, offered in private, decades ‘after the fact,’ when opposed by volumes of official & public documentation to the contrary, can hardly be described as ‘devastating.’ A 'last minute change of heart,' perhaps...
;>)
(By the way, your quotation of Mr. Madison’s repeated references to the possible “dissolution of the Constitutional Compact” hardly supports your contention that the constitutional union was binding in perpetuity… ;>)
”… a faith solemnly pledged." (Using your criteria, we must now refer to Madison as a "mystic.").
Not at all. “Sacred” is primarily a religious term; “faith” is not.
;>)
As far back as the mid-1780's …Madison bemoans the power of the States relative to the powers of the Confedral government… Now, does it make any sense to you that Madison, probably the principal architect of the Constitution of 1787, would have into the Constitution written, implied, or allowed principles he considered defective and evil? It boggles the imagination.
While it may ‘boggle the imagination’ of some, it hardly contradicts documented historical fact. I believe Mr. Madison went into the federal convention as an advocate of a national – rather than federal - government. The convention debated, and specifically rejected, such a government. Obviously, the Constitution and the government that it created did not reflect Mr. Madison’s pre-convention preferences.
;>)