Forbidden Unless
Authorized
November 2, 1999
Advocates of stronger centralized
government, who want to minimize the powers of state and
local governments, often cite Daniel Webster as their ideological
progenitor. They cite especially his famous 1830 Senate speech, the
“Second Reply to Hayne,” with its climactic cry:
“Liberty and Union, now and forever, one and
inseparable!”
Robert Hayne of South Carolina
spoke for Southern interests, which the South felt were being
injured by oppressive federal tariffs that served the interests of
Northern industry. South Carolina claimed the right to
“nullify,” within its borders, any federal law it deemed
unconstitutional. The South asserted that the state governments
were prior to the federal government, a view that would eventually
lead to secession.
In reply, Webster (representing
Massachusetts) denied that the federal government was “the
creature of the state governments”; it was, he insisted,
“the independent offspring of the popular will.” Lincoln
and other centralizers would later appeal to this idea to deny the
right of secession.
But if you read the whole
speech, you find that Webster was far from being a headlong
centralizer. Though he argued that the states must finally be
subordinate to the federal government, he firmly supported the
principle that the federal government must not exceed the specific
powers the Constitution confers on it, since the Constitution,
speaking as “We the People,” is the definitive
expression of “the popular will.”
“The people ... erected
this [federal] government,” Webster said. “They gave it
a Constitution, and in that Constitution they have enumerated the
powers which they bestow on it. They have made it a limited
government. They have defined its authority. They have restrained it
to the exercise of such powers as are granted; and all others, they
declare, are reserved to the states or the people.” The last
sentence deliberately echoes the Tenth Amendment, the bane of all
centralizers.
Webster added: “I admit
that it is a government of strictly limited powers; of enumerated,
specified, and particularized powers; and that whatever is not
granted, is withheld.” This was the common doctrine of the
Constitution; most presidents before Lincoln reaffirmed it in their
inaugural addresses.
Lincoln himself was inhibited
by this principle. In his first inaugural address he admitted that the
federal government had no power to touch slavery in the states
where it already existed; he even added that he had no objection to a
constitutional amendment to that effect. He hesitated for more than
a year over the Emancipation Proclamation, since he had no clear
constitutional power to issue it.
Webster argued that no state
could assume the right and power of declaring federal laws
unconstitutional. He insisted that the federal government alone
could settle questions of constitutionality, in “the final
decision of the Supreme Court.”
Webster’s position, now
accepted by most people, contradicted the warning of Thomas
Jefferson that the federal government must never be allowed to
decide the extent of its own powers. After all, the Constitution was
written not only to authorize the federal government, but to restrain
it; and its own courts would naturally tend to construe its powers
broadly.
How, then, could the American
people resist federal oppression? Webster acknowledged the right of
“revolution,” but said this right belonged to the people,
not to the state legislatures. This too would later supply Lincoln
with a basis for denying the legality of secession.
In essence, Webster was
willing to trust the U.S. Supreme Court to rule impartially between
the claims of the federal government and those of the states. But
what is noteworthy is that he didn’t claim unlimited power
for the federal government; he merely asserted that the American
people had, in the Constitution itself, given it sovereign power to
resolve constitutional questions.
Still, Webster would be a big
disappointment to his latter-day admirers. His argument explicitly
leaves intact the first principle of American federalism: that the
federal government is forbidden to exercise any powers not
specifically assigned to it.
This
forbidden-unless-authorized principle survived even the Civil War,
for a time. But eventually Congress and the Supreme Court learned to
take full advantage of constitutional loopholes and ambiguities
— just as Jefferson had forewarned. If Daniel Webster were
alive today, he would owe Tom Jefferson a large apology.
Joseph Sobran
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