Nullification Proclamation
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.
Argument
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.
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.