As noted a few days ago, Lily’s post on partisan rhetoric brought to mind the antebellic gem of a speech, delivered by Edward Livingston during the heat of nullification debates. Having now read through most of the speech, I can attest to several themes that make reading the thing entirely worthwhile.
- 40 years after the Constitution went into practice, the leading figures in the Senate, over the period of a couple months, delivered what must have been several-hours-long speeches on the very nature of the Constitutional government.
- The questions of federalism, and the energy of our National government that so split Hamilton’s audience splat also these Senators in 1830, as they split us today.
- Livingston manages to bring us within the passionate debate on the structure of the Union, while providing still poignant warnings against passionate rhetoric.
- And he does that while delivering sometimes hysterical hyperbole.
In the last post, I quoted some of his language on blown-out rhetoric. Here, I’ll quote his summary of the debate’s heart: nullification. A few things to note. Nullification was the notion that a state could basically veto a federal law, which, to then pass, the Nation would then need to ratify as a Constitutional amendment. That political issue was the manifestation of the debate that raged (has raged) since the Nation’s inception: to what extent are the federal government and state governments sovereign? Livingston begins this segment with some hyperbole, but I suppose it is deserved hyperbole:
I now approach a graver subject, one, on the true understanding of which the Union, and of course the happiness of our country, depends. The question presented is that of the true sense of that Constitution which it is made our first duty to preserve in its purity. Its true construction is put in doubt—not on a question of power between its several departments, but on the very basis upon which the whole rests; and which, if erroneously decided, must topple down the fabric, raised with so much pain, framed with so much wisdom, established with so much persevering labor, and for more than forty years the shelter and protection of our liberties, the proud monument of the patriotism and talent of those who devised it, and which, we fondly hoped, would remain to after ages as a model for the imitation of every nation that wished to be free. Is that, Sir, to be its destiny? The answer to that question may be influenced by this debate. How strong the motive, then, to conduct it calmly; when the mind is not heated by opposition, depressed by defeat, or elate with fancied victory, to discuss it with a sincere desire, not to obtain a paltry triumph in argument, to gain applause by tart reply, to carry away the victory by addressing the passions, or gain proselytes by specious fallacies, but, with a mind open to conviction, seriously to search after truth, earnestly, when found, to impress it on others. What we say on this subject will remain; it is not an every day question; it will remain for good or for evil. As our views are correct or erroneous; as they tend to promote the lasting welfare, or accelerate the dissolution of our Union; so will our opinions be cited as those which placed the Constitution on a firm basis, when it was shaken or deprecated, if they should have formed doctrines which led to its destruction.
With this temper, and these impressions of the importance of the subject, I have given it the most profound, the most anxious and painful attention; and differing, as I have the misfortune to do, in a greater or less degree, from all the Senators who have preceded me, I feel an obligation to give my views of the subject. Could I have coincided in the opinions given by my friends, I should most certainly have been silent; from a conviction, that neither my authority nor my expositions could add any weight to the arguments they have delivered.
My learned and honorable friend, the Senator near me, from South Carolina, (Mr. Hayne) comes, in the eloquent arguments he has made, to the conclusion, that whenever, in the language of the Virginia resolutions, (which he adopts) there is, in the opinion of any one State, “a palpable, deliberate, and dangerous violation of the Constitution by a law of Congress,” such State may, without ceasing to be a member of the Union, declare the law to be unconstitutional, and prevent its execution within the State; that this is a constitutional right, and that its exercise will produce a constitutional remedy, by obliging Congress either to repeal the law, or to obtain an explicit grant of the power which is denied by the State, by submitting an amendment to the several States; and that, by the decision of the requisite number, the State, as well as the Union, would be bound. It would be doing injustice, both to my friend and to his argument, if I did not add, that this resort to the nullifying power, as it has been termed, ought to be had only in the last resort, where the grievance was intolerable, and all other means of remonstrance and appeal to the other States had failed.
In this opinion I understand the honorable and learned chairman of the Judiciary Committee substantially to agree, particularly in the constitutional right of preventing the execution of the obnoxious law.
The Senator from Tennessee, in his speech, which was listened to with so much attention and pleasure, very justly denies the right of declaring the nullity of a law, and preventing its execution, to the ordinary Legislature, but erroneously, in my opinion, gives it to a Convention.
My friend from New Hampshire, of whose luminous argument I cannot speak too highly, and to the greatest part of which I accord, does not coincide in the assertion of a constitutional right of preventing the execution of a law believed to be unconstitutional, but refers opposition to the unalienable right of resistance to oppression.
All these Senators consider the Constitution as a compact between the States in their sovereign capacity; and one of them, (Mr. Rowan) has contended that sovereignty cannot be divided, from which it may be inferred that no part of the sovereign power has been transferred to the General Government.
The Senator from Massachusetts, in his very eloquent and justly admired address on this subject, considers the Federal Constitution as entirely popular, and not created by compact, and, from this position, very naturally shows, that there can be no constitutional right of actual resistance to a law of that Government, but that intolerable and illegal acts may justify it on first principles.
However these opinions may differ, there is one consolatory reflection, that none of them justify a violent opposition given to an unconstitutional law, until an extreme case of suffering has occurred. Still less do any of them suppose the actual existence of such a case.
