Letter to Daniel Webster

Letter to Daniel Webster, March 15, 1833 (On nullification/secession)

Dear Sir

I return my thanks for the copy of your late very powerful speech in the Senate of the U. S. It crushes “nullification” and must hasten an 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 recd. 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 enquire what the Constitution is; and here it speaks for itself: It organizes a government into the usual Legislative Executive and 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, and 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 Constitution & laws of the States; the powers of the Government being exercised, as in other elective & responsible Governments, under the controul 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. Such is the Constitution of the United States de jure & de facto; and the name, whatever it be, that may be given to it, can make nothing more or less than what it actually is.

Pardon this hasty effusion, which whether according or not precisely with your ideas, presents, I am aware none that are new to you. With great esteem, and cordial salutation,James Madison