Liberty Matters

Keith E. Whittington, “John C. Calhoun, Constitutionalism, and Slavery” (March 2021)

Welcome to our March 2021 edition of Liberty Matters. This month Keith Whittington has written our lead essay on John C. Calhoun. Calhoun was one of the most formidable political thinkers of his era as well as a former Vice President, a member of the House and Senate, and a Secretary of State and War during the first half of the 19th century. He was also a Southerner and a defender of the institution of slavery. As Professor Whittington notes in his essay, Calhoun is fascinating because his writings address many of the issues we are facing about the nature of our Constitutional order today. Much like America during Calhoun’s lifetime, we are deeply divided along regional lines in America today, and Calhoun’s writings on state “nullification” and concurrent majorities speak to many of the discussions we have had about our divisive political landscape. However his defense of slavery was and is so deeply at odds with America’s contemporary culture and values that re-examining Calhoun today helps us confront the question of whether or not we can still learn from the contributions of some historical figures even if we find some of their views repugnant and offensive.

The Debate

Lead Essay: Keith Whittington, "John C. Calhoun, Constitutionalism, and Slavery" [Posted March 1, 2021]

Responses and Critiques

  1. James H. Read, "John C. Calhoun and the Merits of Minority Rights" [Posted March 4, 2021] 
  2. John G. Grove, "Consolidation and Disunion; Tyranny and Anarchy" [Posted March 8, 2021]
  3. Jay Cost, "John C. Calhoun: Slaveholder First, Republican Second" [Posted March 11, 2021]

The Conversation

  1. Keith Whittington, "Reply to Read, Grove, and Cost" [Posted March 15, 2021]
  2. James H. Read, "Restoring Trust in the Democratic Process"  [Posted March 16, 2021]
  3. Jay Cost, "Should we try to fix political parties...or improve them?" [Posted March 22, 2021]
  4. John Grove, "Prioritizing the Practical" [Posted March 26, 2021]

About the Authors

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University. He received his Ph.D. in political science from Yale University and has held visiting appointments at the Harvard Law School, Georgetown University Law Center, and University of Texas School of Law. He is the author, most recently, ofRepugnant Laws: Judicial Review of Acts of Congress form the Founding to the Presentand of Speak Freely: Why Universities Must Defend Free Speech. He also authored American Political Thought: Readings and Materials and maintains a companion website of additional primary documents in American political thought. He is a contributor to the Volokh Conspiracy blog and can be found on Twitter at @kewhittington.

Watch Professor Whittington's video Author Interview here.

James H. Read is Professor and Chair of Political Science at the College of St. Benedict and St. John’s University of Minnesota. He received his Ph.D from Harvard University in 1988. He is the author of three books, Power versus Liberty: Madison, Hamilton, Wilson, and Jefferson (2000), Doorstep Democracy: Face to Face Politics in the Heartland (2008), andMajority Rule versus Consensus: The Political Thought of John C. Calhoun (2009), as well as numerous articles and book chapters in the fields of political theory and American political thought. He is currently writing a book titled Sovereign of a Free People: Abraham Lincoln, Majority Rule, and Slavery. He lives in Avon, Minnesota.

Watch Professor Read's video Author Interview here.

John G. Grove is associate editor of Law & Liberty. Prior to joining Liberty Fund, he was associate professor of political science at Lincoln Memorial University. He received a PhD in political theory from Northern Illinois University and is the author of John C. Calhoun’s Theory of Republicanism, published by the University Press of Kansas in 2016. He has published academic and non-academic work in Polity, American Political Thought, National Affairs, The American Conservative, and other outlets.

Watch John Grove's video Author Interview here.

Jay Cost is the Gerald R. Ford Visiting Scholar at the American Enterprise Institute, as well as a visiting scholar at the Institute for Faith and Freedom at Grove City College. He received his Ph.D. in political science with a focus on American political development from the University of Chicago. Cost’s research focuses on the American Founding, civic virtue, and the qualities of republican government. He is the author of four books, most recently James Madison: America’s First Politician, to be published by Basic Books in Fall 2021.

Watch Professor Cost's video Author Interview here.

Lead Essay: "John C. Calhoun, Constitutionalism, and Slavery"

John C. Calhoun has proven to be a figure of enduring interest and controversy. It is hard to think of a writer who was simultaneously so much a part of the central currents of the American political tradition and so much at odds with core American tenets. He exemplified the contradictions of his age and in some ways of the American experience. In doing so he contributed ideas and arguments about the nature of democracy, constitutionalism, and liberty that continue to be worthy of reflection, even though he often bent his talents to defending an institution deeply at odds with liberal values.

Calhoun was a political titan of the Jacksonian era and one of the most serious American political thinkers between the founding and the Civil War. Raised on the western frontier of South Carolina, as a young Jeffersonian he distinguished himself as valedictorian at Yale College under the tutelage of the Federalist Timothy Dwight. An ambitious young man, he married into the South Carolina planter elite and launched his own political career as an ardent nationalist on the eve of the War of 1812, soon rising into a position in James Monroe’s Cabinet. Pining to be president himself, he got no closer than the vice presidency. He struggled to stay ahead of the political curve. He fluttered from Jacksonian to anti-Jacksonian politics. As politicians in South Carolina grew increasingly extreme in their defense of slavery and states’ rights, Calhoun went with them. Like many politicians of the era, oratory was often his preferred form of communication, and his speeches in the House and particularly in the Senate were among his most substantial works. But unlike many of his peers, he also wrote for print. One of his posthumously published works, A Disquisition on Government, was also the most abstract and has defined his long-term legacy as a political thinker.[i]

Beyond the many immediate political and policy disputes that occupied his attention, Calhoun is ultimately known for two contributions to American political thinking. The first is his theory of state nullification, or in more general form the idea of “concurrent majorities.” The second is his full-throated defense of racial slavery as not merely a “necessary evil,” as an earlier generation of Southern politicians thought it to be, but as a “positive good,” as his own generation of Southern politicians increasingly asserted. Of course, for Calhoun the first served as the procedural means for protecting the second. The two together helped form the foundation of the Southern secessionist movement a decade after his death as well as informing the long history of the sectional defense of Jim Crow after the Civil War.

The theory of state nullification had a short-lived burst of influence in the late 1820s and early 1830s, though it never fell into complete obscurity and was dusted off now and again over the course of subsequent decades. But it was in the context of developing this particular institutional mechanism for the defense of Southern institutions that Calhoun elaborated a much broader argument about the nature of the American union, the baneful influence of political parties, the ongoing threat of factions in an extended republic, and the proper design of checks and balances and of a constitutional democracy.

The idea of state nullification, in a nutshell, is that any state within the Union has an independent authority to declare a federal policy to be in violation of the federal constitution and thus null and void within the jurisdiction of the state. To this extent, the concept is not unlike what a state court might do in declaring that federal law is unconstitutional, but has a variety of important departures from the more familiar idea of judicial review. When this practice of the courts had become common enough by the end of the nineteenth century that it needed a name, some suggested that it be called “judicial nullification” before the name judicial review caught on.[ii]

American-style judicial review occurs within the concrete context of an ordinary case or controversy appearing before a judge. In that context a judge might determine that a statute in question is either valid or invalid under the Constitution. If the latter, then the statute could not be constitutionally applied, at least in some circumstances.[iii] By contrast, the theory of state nullification proposed something more akin to modern European-style constitutional review in which a statute can be declared invalid as a general matter abstracted from any particular application or context. State nullification did not wait for a case to arise or pose the constitutional question in the context of a particular application but simply declared that a statute on its face was void given its incompatibility with the Constitution. Of course, a state supreme court’s declaration that a federal law is unconstitutional  can be reviewed by the U.S. Supreme Court, giving a federal institution the final say on constitutionality of a federal policy under the federal Constitution. Some states’ rights proponents, most notably the Jeffersonian Virginia state chief justice Spencer Roane, would have denied the U.S. Supreme Court the authority to review the actions a state supreme court, but neither Congress nor the Supreme Court were open to the idea that a federal law might be held invalid and unenforceable within the confines of a single state without the possibility of review by an outside entity.[iv]

More distinctively, the theory of state nullification took such constitutional questions out of the hands of the courts.[v] Calhoun traced his idea of state nullification back to the Virginia and Kentucky Resolutions, the protests drafted by James Madison and Thomas Jefferson respectively. Those resolutions contended that the Alien and Sedition Acts adopted by Congress in 1798 violated the federal Constitution. Notably, the resolutions, adopted by the only two state legislatures with Jeffersonian majorities in both chambers, asserted that those bodies could assess the constitutionality of a federal law. The Kentucky Resolution went a bit further and declared that “nullification” by the “sovereign and independent” states was “the rightful remedy” to Congress taking actions “unauthorized” by the Constitution.[vi]

Like the earlier resolutions, Calhoun’s argument turned, at least in part, on what has become known as the “compact” theory of the Union.[vii] The theory held that the Constitution was the result of an agreement, or compact, of the several sovereign states, not dissimilar from an international treaty. As a result, the states had both the authority and the responsibility to monitor the federal government for potential violations of the federal compact, to identify and to call attention to any violations, and to take appropriate steps to secure their citizens from the effects of such constitutional violations. As the authors of the constitutional agreements, the states had a residual authority to interpret its meaning and take any necessary political responses to its violation. As its advocates frequently noted, those responses might extend up to and include secession from the Union itself.

Calhoun was not alone in embracing a theory of state nullification, but he added a great deal of detail about how it would work and a broader theory about why it was justified. Unlike the Jeffersonians, Calhoun urged that such a measure could not be exercised by the state legislature itself. It was not the state legislature that was the repository of the sovereign authority of the state, it was the people of state. Consequently, Calhoun contended that a special popular convention should be called for such a purpose, comparable to the ratification conventions that adopted the federal Constitution or the constitutional conventions that drafted the state constitutions (or ultimately, the secession conventions that purported to take the Southern states out of the Union after the election of Abraham Lincoln).[viii] Calhoun also contended that the sovereignty of the states, within the Union, had been abridged to the degree that such a state resolution of nullification could be overruled – but only by a comparable declaration of the three-quarters of the states that would be necessary to amend the federal Constitution.[ix] A lone state, so long as it remained in the Union, was not the final authority on the meaning of the federal Constitution, even within its own borders, but there could be no appeal from a state nullification convention to any institution of the federal government.

In back of this novel constitutional arrangement was an argument about the essence of a constitutional democracy itself. Like James Madison, Calhoun thought the central challenge of republican government was how to allow the people to govern for the common good without enabling a part of the people to capture the government so as to advance their partial and private interests.[x] Where Madison thought the extended republic could make it difficult for factions to organize and coordinate to securely hold political power, Calhoun thought experience had shown that to be too optimistic. “[T]he necessary tendency of all governments, based upon the will of an absolute majority, without constitutional check or limitation of power, is to faction, corruption, anarchy, and despotism; and this, whether the will of the majority be expressed directly through an assembly of the people themselves, or by their representatives.”[xi] Mass political parties, of the type that had emerged in the Jacksonian era, provided the means for narrowly majoritarian national majorities to form stable governing coalitions that could systematically oppress minority interests. “[P]arty ties,” Calhoun thought, had proven stronger than a commitment to constitutional fidelity.[xii] A dominant party will not hesitate to violate the terms of the constitutional compact so as to advance its own interests, and the formal checks and balances that Madison had valued would be overwhelmed by partisanship.

An effective system of checks and balances must truly match the ability to check power with the interest to check power. Madison had wanted to create a system by which ambition could counteract ambition, but he hoped to do so by connecting “the interest of the man” with “the constitutional rights of the place.”[xiii] Calhoun doubted whether that could be sufficient. Only genuine checks on power could counter “the naked principle that the majority ought to govern.”[xiv] And a genuine check required arming core societal interests with a “veto” power that they could wield against other assembled interests.[xv] State nullification was one such check.

In advocating for nullification, Calhoun contended that the diverse states of the Union embodied those diverse, core societal interests. He subsequently questioned whether that was generally true. The states themselves included their own internal divisions that similarly must check one another.[xvi] The Union, he eventually asserted, was divided along a single overriding fissure, that between slave states and free states, and thus new constitutional arrangements were necessary to formally account for that divide.

"The nature of the disease is such, that nothing can reach it, short of some organic change—a change which shall so modify the constitution, as to give to the weaker section, in some form or another, a negative on the action of the government. Nothing short of this can protect the weaker, and restore harmony and tranquility to the Union, by arresting, effectually, the tendency of the dominant and stronger section to oppress the weaker. When the constitution was formed, the impression was strong, that the tendency to conflict would be between the larger and smaller States; and effectual provisions were, accordingly, made to guard against it. But experience has proved this to have been a mistake; and that, instead of being, as was then supposed, the conflict is between the two great sections, which are so strongly distinguished by their institutions, geographical character, productions and pursuits. Had this been then as clearly perceived as it now is, the same jealousy which so vigilantly watched and guarded against the danger of the larger States oppressing the smaller, would have taken equal precaution to guard against the same danger between the two sections. It is for us, who see and feel it, to do, what the framers of the constitution would have done, had they possessed the knowledge, in this respect, which experience has given to us—that is—provide against the dangers which the system has practically developed; and which, had they been foreseen at the time, and left without guard, would undoubtedly have prevented the States, forming the southern section of the confederacy, from ever agreeing to the constitution; and which, under like circumstances, were they now out of, would forever prevent them from entering into, the Union." [xvii]

As this final argument in his posthumous Discourse on the Constitution and Government of the United States emphasized, the core “minority” interest that Calhoun was so keen to defend was ultimately the interest of slaveholders.

It is quite possible to separate Calhoun’s analysis of democratic constitutional politics from his motivation for developing such an analysis. His argument that party loyalties would overwhelm constitutional loyalties could hardly be more prescient. His worry that the separation of powers would not sustain effective checks and balances in the context of organized partisan politics has been a staple of American constitutional thought since the Progressives. His belief that a politically appointed federal judiciary would not reliably stand as a countermajoritarian check on power but would instead mirror the beliefs and interests of the same majority that won national elections has been shared by judicial analysts for decades. His analysis of the American constitutional scheme through the lens of his theory of “concurrent majorities” – the idea that constitutional power should not be exercised by simple majorities but by the agreement of the majorities of the multiple interests in society – can be illuminating.[xviii]

What has borne the test of time less well are his prescriptions. There are, of course, advocates of majoritarian democracy in our day as there was in his, and they would disagree with his normative starting point. But even those who might be sympathetic to his diagnosis of the populist threat in democratic politics have found his efforts to institutionalize a system of political vetoes difficult to work in practice. Calhoun was optimistic that a widespread system of vetoes would lead to compromise and consensus-building around genuine shared interests.[xix] We might worry that it is more likely, for better or for worse, to lead to gridlock. Calhoun was hopeful that acceptance of state nullification would stave off secession and disunion. We might think that unlikely, and the cost might be too high in any case. Even his contemporaries wound up abandoning both the theory and the practice of state nullification, though the broader state compact theory remained influential at least through the Civil War. As his moving the goalposts throughout his lifetime suggests, the quest to find a stable set of core interests that would provide the foundation for his system of concurrent majorities has seemed fruitless.

Of course, the aspect of Calhoun that has most negatively affected his historical reputation is his explicit defense of slavery. It might have been one thing if Calhoun had simply been motivated in his actions to defend and advance the parochial interests of South Carolina, but he went much further than that. An important part of his intellectual legacy is his role as a pro-slavery theorist. He figures prominently among those who did not merely accept slavery but insisted that slavery should be celebrated. That commitment led him far outside the mainstream, as it had once been understood, as he worked to shift what America was understood to be. It ultimately led him to reject central tenets of the American ideal and of liberalism itself as he articulated a genuinely illiberal American political theory.

In responding to abolitionist petitions submitted to Congress, Calhoun advocated a gag rule excluding them from the possibility of congressional debate and response. It was not enough that the Congress adhere to a limited theory of its constitutional authority nor that slaveholding states be accepted as equal partners in the Union. He insisted on taking the “higher ground.” Where “two races of different origin” are “brought together, the relation now existing in the slaveholding States between the two, is, instead of an evil, a good – a positive good.” It was inevitable, he contended, that in a “wealthy and civilized society” some would “live on the labor of the other.” Calhoun suggests that the “African race” is better off in the condition of slavery than it would otherwise be. That race, he contends, has never “attained a condition so civilized and so improved” as they had as slaves on a Southern plantation. But more important than whatever benefits the institution of racial slavery might provide the enslaved, Calhoun thought it was in the long-term interest of whites to continue it. It was in their interest not because they had the “wolf by the ear” and could not “safely let him go,” as Jefferson said.[xx] Rather, Calhoun contended that enslaved blacks benefited whites because slavery addressed the inevitable and revolutionary conflict between labor and capital. Someone must rule, and Calhoun thought it was preferable, for him and his community, that it be the European race and not the African race. In the “disorders and dangers” to come, it is not clear that Calhoun imagines that liberal democracies will survive.[xxi]

At the end of his life, Calhoun reached his perhaps inevitable conclusion of rejecting the Jeffersonian embrace of Lockean liberalism. In his Disquisition, he denounced the “great and dangerous error” that “all people are equally entitled to liberty.” Liberty was “a reward reserved for the intelligent, the patriotic, the virtuous and deserving.”[xxii] As Thomas Hobbes might have recognized, Calhoun posited that the purpose of government was to overcome the human “tendency toward a universal state of conflict.” The government provided security, not because everyone had or would enter into an equal social contract that would respect their equal individual rights but because government was necessary “to preserve and perfect society.” It was “necessary to the existence and well-being of our race.” Although it was an abuse of government for some to use the instruments of government “to oppress the rest of the community,” it was no longer the end of government to secure the blessings of liberty. Government is to protect the community from “plunder and conquest,” which required governmental strength that could not be easily limited and constitutional mechanisms to prevent the distinct communities within society from plundering each other.[xxiii]

Calhoun was a sophisticated theorist of constitutional government, but his was an illiberal form of constitutionalism. The foundations and ends of government were not based on the premise that all men were created equal and should be willing to consent to the form of government in which they found themselves. The purpose of his government is not to secure individual liberty but to secure communities, communities that were in an important sense part of the natural order and potentially highly inegalitarian. The Declaration of Independence was valuable to him only for how it was styled as from the “thirteen United States of America,” not for the principles that Americans had long taken as commonplace and that Abraham Lincoln took as those upon which the nation was conceived and dedicated. As a result, Calhoun simultaneously advanced and departed from the traditions of American political thought. He continued forward the Madisonian project of attempting to reconcile republicanism and constitutionalism, but he renounced the Jeffersonian project of trying to realize a government that secured to all the right of life, liberty, and the pursuit of happiness.