The Nullification Proclamation was a presidential proclamation written by Edward Livingston and issued by President Andrew Jackson on December 10, 1832. It was made in response to South Carolina's Ordinance of Nullification, in the midst of the Nullification Crisis.
Unconstitutionality of the doctrine of nullification
Livingston argues that the Ordinance of Nullification espouses a doctrine both unconstitutional and rebellious. He sees nullification as a doctrine giving states unlimited power, allowing them to take advantage of all the benefits of the constitution but none of its responsibilities:
The ordinance is founded, not on the indefeasible right of resisting acts which are plainly unconstitutional, and too oppressive to be endured, but on the strange position that any one State may not only declare an act of Congress void, but prohibit its execution – that they may do this consistently with the Constitution – that the true construction of that instrument permits a State to retain its place in the Union, and yet be bound by no other of its laws than those it may choose to consider as constitutional. It is true they add, that to justify this abrogation of a law, it must be palpably contrary to the Constitution, but it is evident, that to give the right of resisting laws of that description, coupled with the uncontrolled right to decide what laws deserve that character, is to give the power of resisting all laws.
Livingston describes nullification as a doctrine under which a state's decision to nullify is final and cannot be appealed, and suggests that any undesirable law could as a result be called "unconstitutional" and disregarded by any individual state. In the specific case of taxes, given the constitution's requirement of representative taxation, one state's refusal to collect taxes automatically makes the tax unequal and thus unconstitutional everywhere. Much better, he argues, is the system of the existing federal government, under which an unconstitutional law passed by Congress can be appealed through the judiciary or constitutional conventions.
Livingston goes on to call the doctrine of nullification an innovation not contemplated by the opponents of the excise tax on whiskey, the embargo and non-intercourse laws, the carriage tax, or the War of 1812. This, he argues, was a result of the bond between the states that had been formed while they were still colonies of Great Britain. He gives the Declaration of Independence as an example of joint action by the "United Colonies of America," and refers to the Articles of Confederation as forming a nation, drawing special attention to Article XIII:
Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them.
- —Articles of Confederation, Article XIII.
This statement, according to Livingston, made it illegal for a state to refuse to submit to a decision of Congress, but because the Articles did not define an enforcement provision, it was not obeyed. In response to this and other weaknesses, a new Constitution was crafted with several objects in mind.
The most important of these to Livingston is "to form a more perfect Union." This, he argues, is sufficient argument to dispel the idea that the Constitution is dependent on "a prevailing faction in a State":
I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed.
Discussion of the ordinance
Livingston examines the ordinance, and finds the rationale for nullification in this particular instance as the following:
- The assumption that the tariff laws, though claimed by supporters to be to raise revenue, were actually for the protection of manufacturing industries
- That this execution of the tariffs is unequal
- That the tariffs are generating more revenue than the government requires
- That the extra revenue is being spent on unconstitutional ends
The first of these points, Livingston argues, if valid, would be impossible to impartially enforce, because any entertainment of unconstitutional purposes by the supporters of legislation could never be truly discovered. To give states the right to judge the motivations of Congress would be "absurd and dangerous":
Admit this doctrine and you give to the States an uncontrolled right to decide, and every law may be annulled under this pretext.
Livingston addresses the second point by claiming that all taxes are unequal, and that if such is sufficient cause to dissolve the Constitution, then it should be abandoned. If it were as weak as that, he argues, it would not have been worth the efforts of the Founding Fathers. He says that the state conventions never entertained this idea of nullification:
Nor did the States, when they severally ratified [the Constitution], do so under the impression that a veto on the laws of the United States was reserved to them, or that they could exercise it by application.
The third point of the ordinance Livingston rejects based on Congress's constitutional power of raising revenue, and its prerogative to judge how much is needed. The states and the people, he says, have the power to replace those representatives who abuse this power, but beyond that they have no say in the matter. Giving state legislatures and conventions this power would lead to the disintegration of the federal government:
You must perceive that the crisis your conduct presents at this day would recur whenever any law of the United States displeased any of the States, and that we should soon cease to be a nation.
The fourth point Livingston briefly dispatches by suggesting that the supposedly unconstitutional spending should be challenged separately and not be considered unconstitutional simply because of how it was made possible.
He proceeds to describe the consequences of the doctrine of nullification, first saying that it gives a bare majority in one state to declare themselves free of the operation a law judged by others as constitutional. He proceeds to describe the damage done to the Constitution by making state declarations and law "paramount" to the Constitution, summarizing as follows:
Here is a law of the United States, not even pretended to be unconstitutional, repealed by the authority of a small majority of the voters of a single State. Here is a provision of the Constitution which is solemnly abrogated by the same authority.
Livingston then turns to the ordinance's threat of secession if the laws should be executed by the federal government. He rejects the compact theory of the federal government, arguing instead that the people, though they acted in state conventions to ratify the Constitution, are collectively represented. The president, vice-president, and house of representatives, he argues, are all representatives of the people, not the states, and that this means that any attempt to secede would not be a simple act of disunion of a member of a league, but an offensive action causing the destruction of a nation:
To say that any State may at pleasure secede from the Union, is to say that the United States are not a nation, because it would be a solecism to contend that any part of a nation might dissolve its connection with the other parts, to their injury or ruin, without committing any offense.
Livingston admits the revolutionary power of secession in extreme cases, but refuses to call it a constitutional one. He goes on to describe the compact signed by the states as a "binding obligation." He goes on to describe three types of compacts:
- A compact forming a league, with no power to sanction a member in the case of a breach
- A compact forming a nation, with implied power to sanction a member in the case of a breach
- A compact forming a nation, with express power to sanction a member in the case of a breach
Livingston quickly rejects the first and instead describes the Constitution as the second and third type. First, a federal power of self-defense is implied, allowing it to punish any state that commits the "offense" of destroying a government by force of arms. Second, he paraphrases the necessary and proper clause, and claims that this clause expressly gives Congress the power to punish obstruction of its laws.
He continues by challenging any state's right to secede. First he argues that the states have not retained their entire sovereignty – that they surrendered powers related to foreign affairs and "exclusive judicial and legislative powers" – and that this transfered the citizenship of individuals from state to nation and made them owe allegiance to the United States Constitution, not their states. This, he claims, is especially evident in the fact that the right to punish treason was ceded to the federal government in the Constitution.
Livingston then returns to the compact vs. league discussion, saying that using the term "league" to describe the government formed by the Constitution is self-evidently wrong, and that supporters of the compact theory are disingenuously attempting to conflate the term "compact" with the meaning of "league" without using the term.
He closes the section by appealing to shared history, arguing that the "mutual sacrifices" of the past require continued unity, and that actions of disunion by one state can be opposed by other states out of self-defense.
Livingston begins his conclusion by distilling two alternatives:
These are the alternatives that are presented by the convention: A repeal of all the acts for raising revenue, leaving the government without the means of support; or an acquiescence in the dissolution of our Union by the secession of one of its members.
Speaking for Jackson, Livingston quotes Article II of the Constitution, requiring that the president faithfully execute the laws, to warn South Carolina. He goes on to implore its citizens to turn away from those people advising disunion, not to profane the country fought for by their fathers, and to instead consider themselves citizens of America.
He finishes with a threat, saying that "disunion, by armed force, is TREASON," and that he will not allow it to go unpunished. He intends "to preserve the Union by all constitutional means," including the use of force, if required, but hopes that it is not.