Sobran Column -- Forbidden Unless Authorized
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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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