fbpx

Calhoun and Constitutionalism

Union and liberty are not two terms most people associate with John C. Calhoun, a figure often linked exclusively with secession and slavery. But a reading of Liberty Fund’s 1992 Union and Liberty, a single-volume collection of Calhoun’s writings and speeches edited by the late Ross M. Lence, reveals a mind most intently focused on investigating and assessing the origins and tendencies of constitutional government. The only major American statesman to write a theoretical treatise on government and constitutionalism, Calhoun offered a unique and persuasive explanation of consensus-based constitutions as the only way in which liberty could be combined with the governmental power necessary to protect society, allowing for both strong union and liberty.

As Lence notes in the Foreword, Calhoun’s support of slavery, the legacy of the Civil War, and the 20th century’s malignant uses of “states’ rights” have “distracted historians and political scientists from serious consideration of his ideas.” This is all the more true today. Reading Union and Liberty, however, should show that this avoidance of Calhoun’s theory is a mistake.

While most of his best writings are free of such topics, Calhoun’s odious views on race and slavery make reading a few of his writings—like his simultaneously brilliant and foul “Speech on the Oregon Bill”—an exercise akin to panning for gold: there is sometimes some ugly mud to root through, but there are also valuable nuggets of insight to be found. It has been a perennial question as to whether one can meaningfully separate Calhoun’s theory from his practical commitment to slavery. In my book, John C. Calhoun’s Theory of Republicanism, I offer an extensive argument that one can and should separate the two. The result is a powerful and persuasive assessment of constitutional government which—though it was developed through his extensive and direct engagement with mid-19th-century issues—has nothing to do with slavery or secession at its core.

The subtitle of Lence’s collection, The Political Philosophy of John C. Calhoun, offers insight into the editor’s purpose: the selections are designed to present Calhoun to the reader as a political thinker. Lence included the Disquisition on Government and Discourse on the Constitution in their entirety. These two works, written at the end of Calhoun’s life, present his ideas in a systematic way and are the best introduction to his thought. Also included unabridged are two early speeches from his time in the House of Representatives, three of his four vital writings during the nullification crisis, the notorious “Speech on the Reception of Abolition Petitions,” and six more writings which cover the pressing political questions of the second half of his career ranging from the national bank to the status of slavery in the federal territories.

While there are a few unfortunate omissions (the most important being the “Letter to James Hamilton” which is Calhoun’s most theoretically robust defense of his doctrine of nullification), Lence is to be credited for having assembled a core set of documents which allow a reader looking to go beyond simple caricatures of Calhoun to understand not only the nuances of the nullification doctrine, but also the depth and subtlety of Calhoun’s broad constitutional theory.

Concurrent Constitutionalism

This constitutional theory finds its most thorough and comprehensive articulation in the Disquisition on Government. The short treatise begins with a basic understanding of human nature, moving on to an identification of the purpose of government in relation to that nature and the dangers that arise from the concentration of governmental power. It then proceeds to explain the essence of constitutional governments and provide an analysis of historical examples.

This theory is often dubbed the “concurrent majority” theory. I use “concurrent constitutionalism” because, though Calhoun never used this phrase, it more fully captures an essential characteristic of his thought—namely, that he was attempting to describe what constitutional government consisted of. He was not advocating for one particular constitutional model, but rather arguing that all constitutional governments as that term was commonly understood, partook to a greater or lesser degree in certain principles—principles of concurrence.

Calhoun begins the Disquisition by emphatically rejecting social contract theory or any other approach which would find the origin of political liberty outside of law and society. Human beings, he argued, are definitively social creatures, empirically and teleologically. Our “inclinations and wants” impel us to live with others, and we also attain our highest moral fulfillment in society.

This insistence on human sociality was the theoretical root of his rejection of the Declaration’s political philosophy. If our political theories begin with a hypothetical “state of individuality” (and it is an interesting note that he explicitly affirmed that all men would, indeed, be free and equal in such a hypothetical state), we wind up overlooking the first priority of constitutional government: the promotion of our communal life together, with the material and moral benefits that come flow from it.

Concurrent constitutionalism was not intended as an abstract blueprint; it was a theory that could inform prudential statesmanship, but not take its place.

But despite their importance to our nature, our social inclinations are regularly overpowered by our “individual feelings,” which often impel us to use those around us for our own ends. This presents a dilemma: human beings must by nature live in society with one another, but that same nature regularly causes us to undermine and imperil that society. Thus, government, the purpose of which is to “preserve and perfect society,” is an essential element of human existence, and the political state is man’s “natural state.”

But government itself is susceptible to the same human nature which makes its existence necessary: those empowered by a government are strongly inclined to misuse its powers for their own benefit. Thus, political liberty requires a constitution—the method by which a government, “by its own interior structure,” can be made to resist this tendency to abuse of power.

Constitutions do this by taking the sense of the community, in all its complexity and diversity, and making the government reliant upon that sense. Elections with universal suffrage are part of this process, but not at all sufficient, as they merely transfer effective power from rulers to a numerical majority which, as any number of political thinkers have observed, hardly represents the entire community. Genuinely constitutional governments, then, find a way to give a voice to the most fundamental subsections of a community and either require their concurrence for government action, or give to each a veto over the actions of government. Compromise between these sections of society becomes a political necessity and the fundamental political art by which the voice of the whole can be heard.

Calhoun’s particular style of writing in absolute terms sometimes gets in the way of understanding the flexibility and adaptability of concurrent constitutionalism. He sometimes spoke of certain observable political phenomena as if they always manifested themselves in their most extreme form. But as his examples—ranging from the Roman Republic to the Iroquois Confederacy—make it abundantly clear that what he had in mind in explaining the “laws” of politics were core, underlying political tendencies which, though always at work, would be modified by particular circumstances and manifest themselves in many different ways. The constitutions formed in response to these tendencies, moreover, would also differ greatly, taking the core principle of concurrence to a greater or less extreme, as circumstances allowed. Concurrent constitutionalism was not intended as a blueprint to follow, but as an explanation of what constitutions are, what purpose they serve, and how they arise. It was a theory that could inform statesmanship, but not take its place.

This often-overlooked flexibility also answers the most common objection to concurrent constitutionalism, namely, that it is too impractical and would lead to a paralyzed government. Calhoun’s simple answer to this criticism was that, if the principle does so, it has not been skillfully applied. In the Disquisition, He cited the liberum veto of the Polish-Lithuanian constitution as an example of the concurrent principle having been taken to such an extreme that it opened up avenues by which the government could be paralyzed from outside forces (though he does note that even this extreme form of concurrence allowed for over 100 years of flourishing). Calhoun did not seek a constitutional order which tied a government’s hands behind its back. Rather, he believed such institutions allowed for the power necessary for good government to be safely vested in the hands of political leaders. Of course, such institutions also require that all portions of society actually seek the flourishing of the whole. If any part of society would rather see the country burn to the ground than give in on some particular issue, the mechanisms are unlikely to work. But in that case, Calhoun would argue (probably correctly), republican government is as good as dead anyway.

Ultimately, the concrete institutions of any nation’s constitution are developed by statesmen, usually in a crisis situation which provides the opportunity for moderate, prudential reform as an alternative to force. Any constitutional mechanism, he stressed, must be the product of wise and moderate consideration—it must, as he said on the Senate floor, “be made to fit” the circumstances.

Calhoun’s concurrent constitutionalism was, however, decidedly pessimistic. Reflecting ancient republican attitudes, he emphasized the powerful forces at work on all constitutions tending toward corruption and dissolution. Internal and external dangers may make concentrated power unavoidable, and the ambition of public men makes them inclined to destroy concurrent mechanisms, often in the name of democracy. Such pessimism dominated his outlook on American affairs, and just before his death in 1850 he dolefully predicted that the Union would, within 12 years, break apart over a presidential election.

This understanding of constitutionalism contains timeless insights, and is particularly valuable, as Lence notes in the Foreword, when read next to The Federalist. From the extended republic theory of #10 to the conception of republicanism in #39 to the disparagement of “accident and force” in #1, Calhoun had an uncanny knack for finding the few, small cracks in that great work’s argumentation, prying them apart, and peering inside to find their origin and consequences.

Concurrent Constitutionalism in America

More than his general theory of constitutionalism, Calhoun is known for the specific doctrine of nullification—an application of the broader theory to the American federal system. Union and Liberty does not provide much insight into the first inklings Calhoun had of this idea, which are to be found in his reaction to the presidency of John Quincy Adams (particularly in the “Patrick Henry-Onslow” debate). Indeed, the collection moves from an 1816 speech in the House to the 1828 “Exposition and Protest,” a 12-year leap which might give the impression that Calhoun went from ardent nationalist to states-rights advocate overnight. But such omissions cannot be helped in a one-volume edition.

Developed in reaction to the so-called “Tariff of Abominations,” the doctrine of nullification (or, using Calhoun’s preferred term, “interposition”) held that the government of every state of the Union possessed the authority, along with the federal government, to interpret the Constitution. Further, the people of a state possessed the authority to assert the unconstitutionality of a federal law and prohibit its enforcement within the state’s bounds, at least until a federal compromise was reached or its action was overruled by a constitutional majority of three-fourths of the states. 

Calhoun’s conception of nullification was an ingenious and rather noble attempt to reconcile vital constitutional differences by appealing to the voice that originally empowered the constitution.

In keeping with his broader theory, Calhoun made extensive arguments that nullification was not a new invention, but a power implicit in the constitution—much like the power of judicial review. He pointed to the historical primacy of the states, the assumptions which underlay the Articles of Confederation and the Constitution, the text and history of the Constitution itself, and, vitally, the constitution’s ratification method whereby any state could have opted to go its separate way, as evidence that the people, separated into distinct states, had been and remained the sovereign of the American political system. None of these arguments, of course, was original—they were all part of a well-established Jeffersonian interpretation of the constitution and its framing.

One of the most overlooked elements of Calhoun’s doctrine of nullification is its extraordinary and unique attempt to find a safe, limited, and institutionalized ability to call into being the sleeping American sovereign. This was not, as many stubbornly suggest, the individual state governments. Rather, it was the authority of the American people, divided into distinct communities, speaking through traditional constitutional forms. When Calhoun argued that the states were the parties to the constitutional compact, he meant the collective societies of each state, not the governments. This conception was not much different than the view put forward by James Madison in Federalist #39:

Ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States. . . It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves.

The power of an individual state government to abide by its own interpretation of the constitution was one side of what Calhoun called a “mutual negative” which both the state and federal governments possessed against the powers of the other. It was, however, temporary and limited at best. Such actions were meant merely to clear the way for a state convention—the historical method by which the sovereign people spoke. This individual state convention, then, possessed the formal authority to declare a law unconstitutional, but its action could be overturned should three-fourths of the states (all of which would have to buy into this process, of course) reject the nullification. Even more likely, Calhoun believed, was that the federal government would find an acceptable compromise to avoid such final constitutional judgments. This is what happened in the crisis of the tariff.

The doctrine conceived of the constitution as the way in which society, speaking through established forms, actively governed itself. Even if one agrees with its critics that it was “impractical,” it was nevertheless an ingenious and rather noble attempt to reconcile vital constitutional differences not through submission to one ultimate authority (The Supreme Court), but first through compromise and second through the voice that originally empowered the constitution. (Three-fourths of the states, he noted in the “Fort Hill Address,” “form a power, whose decrees are the Constitution itself.”)

This broader process of constitutional adjudication also puts Calhoun’s views on secession in proper context. He saw a right of secession as an inevitable conclusion of the compact theory of the Constitution (and he was, of course, hardly the first to see the constitution in this way), but he never advocated its use. During the nullification crisis, he advised—against the fire-eating secessionists—that, should nullification fail, South Carolina ought to “give it up!” Even at the end of his life, he spoke of secession only as a last resort to be avoided at all costs.

It is also important to recognize—especially if one wishes to draw insight from concurrent constitutionalism into today’s political life—that nullification was not the only concurrent mechanism identified in the American political system. One of the gems in Union and Liberty is the largely forgotten “Speech on the Veto Power,” which Lence goes so far as to call “one of the most succinct, precise essays on the origin and extent of the government of the United States ever written.” In this speech, Calhoun outlined the various concurrent mechanisms built into the national government. We might think of these mechanisms as “concurrence light”—they do not directly offer a portion of society a veto, but they nevertheless require, in practice, the acquiescence of different elements of society in order for policy to be made.         

The Senate, selected equally by state legislatures; the House, selected by the people divided into districts by their state; the President, selected by electors divided across the states in a way that reflects both the Senate and House numbers; The Supreme Court, appointed by the President and confirmed by the Senate: The concurrence of all is necessary for a law to be made, enforced, and maintained. And while these institutions do not directly represent a particular element of American society, their differing modes of selection nevertheless make it extremely difficult for any one portion of society—even a numerical majority—to control the powers of government. Only when “all these keys [are] skillfully touched” will there be “given out, in one blended and harmonious whole, the true and perfect voice of the people.” 

Politics and Political Philosophy

The practical political issues with which Calhoun grappled are presented in Union and Liberty, but mostly to the extent that they demonstrate various applications of Calhoun’s conception of constitutionalism. In the “Edgefield Letter,” we hear his concerns about the concentration of political and financial power in the form of the national bank; in the 1847 “Speech at Charleston” we see him call for partisan unity in the South, even while explicitly acknowledging that such political calculations were a sign of a moribund constitutional order. And, of course, there is slavery.

Calhoun was an unrepentant slaveholder, and he is often described as a figure who fundamentally changed public attitudes by developing a new theory of slavery. The first of these descriptions is undoubtedly true. The second is mostly false. The writings collected in Union and Liberty, and those left out, reveal a man whose defense of the institution was—like most of those around him—instinctual, rather than intellectual.

Calhoun’s rhetoric reflected ideas that, by the 1830s, had become commonplace in the South: He claimed that slavery was humane and improved the condition of the slave; he contrasted it favorably with the excess of Northern and European free labor; he claimed the plantation was a community which constructively blended the interests of the slave and master alike; but he never expanded much on these ideas. Such arguments rarely came up unprompted and there is little evidence of his having exerted significant intellectual effort in developing anything resembling a theory of slavery—economic or pseudo-scientific. It is not mentioned at all in the Disquisition, and only comes up briefly in the Discourse and there only as an explanation for the cause of recent tensions between the states. The infamous “positive good” phrase—which, as Lence notes, Calhoun immediately insisted was misinterpreted as an abstract label—was nestled in his remarks amongst all the common, paternalistic bromides which pervaded the South.

Calhoun’s views on race and slavery were unquestionably odious. But they were not terribly new or innovative. And as I explore in detail in my book, not only are they severable from his political and constitutional theory, several of them actually stand in stark contrast to the more developed, intellectually-rigorous arguments about constitutional liberty found in his theory. The most obvious of these is the contradiction between chattel slavery and the presumption that unchecked power over others can never be reliably benevolent.

Despite Calhoun’s flaws, he was able to use his long political career in tumultuous times to develop rare insight into the nature and tendencies of popular constitutional government. A thorough reading of the works in Union and Liberty—especially the Disquisition—would lead most readers to a more nuanced appreciation of one of America’s preeminent political theorists.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on April 08, 2020 at 12:14:55 pm

I propose a virtual toast to Mr. Grove, and despite the current quarantined captivity of MLB's Spring Training, itself yet another of America's 350 million prisoners of war in the "Red China War on World Health and Stability," I raise my Curly W cap to Mr. Grove, who is now batting three for three on the important matter of provocative essays that are clearly, concisely and well written.

Mr. Grove's excellent essay and book on Calhoun notwithstanding, at Yale University the powers of political correctness and post-modern historical revisionism have replaced the public prominence of Calhoun's portrait and the name of his college with the picture of a dolphin and the label of a female Admiral. This is how the world perishes.

Yet, while history can be revised it cannot be erased, and Grove's writing demonstrates genuine and genuinely rare academic courage in arguing that, rightly understood, the collected writings of John C. Calhoun, one of the few genuinely brilliant and genuinely deliberative Members of the United States Senate (which Chief Justice Roberts, whether in naivete, irony or jest we'll never know, recently called, "The world's most deliberative body,") hideously scarred as Calhoun was with the early 19th century racism of his culture and community, nevertheless offer a scholar's treasure chest, perhaps even a bijou, of political creativity and communicative strength worthy of contemporary consideration.

read full comment
Image of Paladin
Paladin
on April 08, 2020 at 15:03:17 pm

Reading this fine essay together with F.H. Buckley's is especially instructive. There he argues that "orginalism" in constitutional theory is a subtle, rarefied form of positive law thinking. So it is -- and so, it probably must be. Both when unexpected circumstances arise and when the general culture changes, governance, guided by a Constitution, should also adapt. But Constitutions are designed and should make adaptation difficult, but not impossible.
Calhoun's great insight was to see that if the purpose of the republicanism generally is to curb power, a single written Constitution adjudicated by a federal Supreme Court, might be insufficient to curb federal power. So, he looked to find an alternative institutional structure to do this. The states were an obvious choice to provide a second filter: the antedated the federal government and both looked to popular approval for their legitimacy.
One might also argue that the Articles of Confederation were well designed for that task and that they were made extinct through improper means.
But politics has another and more central purpose: to make decisions, which is to say, the wielding of power -- hopefully for the common good of the governed. Decisions, like constitutions, are made humans -- flawed humans at that. Calhoun's system made decisions more difficult -- both in the making of a decision and in the implementing of it. Thus, in an important sense, it was trying to make government more difficult to govern.
The other difficulty was to add a new layer of required public support of decisions made by government. Popular support is required in choosing a president; also for congressional representatives; and for senators, either indirectly through state legislatures or directly by popular vote. And likewise for state-level offices. Calhoun's system required several additional efforts to ascertain "what the public wanted."
It was thereby both conservative in making any government decision more difficult and populist in making any decision and its implementation dependent on a series of appeals for popular assent. Whether such a system would have served the people living in North America over several centuries well or not is a matter of speculation.

read full comment
Image of Robert Schadler
Robert Schadler
on April 09, 2020 at 13:13:50 pm

Making governance and decisions more difficult -- well-said. It struck me several places in the essay is that while we might posit that a state, or some other constituency within the greater union, should have a forum to say "that's not what we think the constitution means or intends", and that their objections then deserve to be discussed, te implication is that once such an objection is raised, it can't be settled except by having three fourths of the states agree to it. In essence, it takes a constitutional amendment just to affirm that the constitution still means what most of us already thought it meant. Thus, governance is impossible without constant reaffirmation of the authority to govern.
To some degree, that is always true... A divided government cannot govern effectively, and government is only possible with some good will, some faith acceptance of the legitimacy of the government. But effectively, Calhoun is setting the bar so high as to automatically make decisions difficult. This deteriorates into nihilism.

read full comment
Image of cmcc_aus
cmcc_aus
on April 08, 2020 at 21:54:59 pm

For an in depth(and completely annotated/replete with source material) discussion on this topic, see the book "Nullification" by Thomas E. Woods.

read full comment
Image of anony
anony

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.