ISSUE: Summer 1937
When three hundred dormitory residents in a Southern city, their sleep disturbed by drilling in the street, turned fire hoses on the workmen responsible for the noise, they were probably acting more or less spontaneously; certainly they were not consciously following in the political tradition of Calhoun. Police ordered the drillers to withdraw, and annoyance relapsed into slumber; but nullification had again served to protect the interest of a group from the consequences of an act of authority taken without its consent.
Nullification is popularly associated with the doctrine of state sovereignty, which was generally supposed, at least until the late stages of the 1936 campaign, to have perished at Appomattox. For contemporary political thought, however, it has a significance which, paradoxically enough, cuts across state lines. Ours is an age in which interests are not restricted by geography. Though officially “federal” still, the component elements of the Union are rather unlocalized functional groups than specific regions; and the doctrine of state sovereignty to which Calhoun gave ultimate expression becomes, for the machine age, an economic pluralism.
It was the contention of Calhoun that these component elements—in his terminology, the states of the American Union—were the actual seats of sovereignty, and that the federal government exercised only a delegated power, functioning by consent of its parts. The sovereignty is not divided among the states, but each of these possesses a sovereignty of its own which the government as agent may not overstep. The parts are not divisions of the whole, but the whole is a composite of the parts—parts which retain their single interests and their single wills and which have a concurrent voice in the making of the laws. For “state” read “interest group”; instead of a political, supply an economic content—and the doctrine becomes one of direct contemporary significance.
I
The bitterness engendered by the Civil War tended for a generation to obscure the contributions made by Southern leaders to American political thought. The cause they espoused had been defeated, and, by the democratic test of majority opinion, it was therefore false. Yet there were clearer heads below the Line than north of it—not least among them the shaggy head of John Caldwell Calhoun. Born in 1782, Calhoun was bred to political controversy. In the first flush of early maturity he learned the lesson of the Kentucky and Virginia Resolutions, and a dozen years later entered Congress, where his keenness and ability won him wide respect. Through the War of 1812 and the first expansion of American industry given impetus by it, he followed the nationalism of Clay, inspired by the vision of a great united nation, unswerving in its idealism, invincible in its might. So he rose to be Secretary of War and Vice President; and looked, not without hope of success, at the highest office in the land.
The same industrial expansion which gave birth to the “American System,” however, sowed also the seed of economic ruin in Calhoun’s native South. More clearly perhaps than any of his contemporaries, he saw the problem, worked out his own solution, fought for it in utter disregard of party lines and personal ambitions until his death in 1850. The issue raised by the tariff of 1828 and brought to a head by that of 1832 is the problem faced by every government in the modern world: the problem of balancing equitably the contradictory interests which make up the state. The solution, like contemporary solutions of the same problem, strikes at the very roots of the concept of sovereignty.
Madison had argued in the convention of 1787 and had written in the Federalist that all societies are divided into different classes as representing different interests, and that the “regulation of these various and interfering interests forms the principal task of modern legislation”—a view upheld by men as far apart as Adams, Hamilton, and Jefferson. But the business of regulation soon presented unexpected difficulties; for the very men into whose hands the task was committed were themselves moved by the demands of the very interests they were called upon to harmonize, and majority rule had been made with due sanctimony the order of the day.
It was the master farmer of Caroline County, Virginia, representing an interest already on the wane, who first raised voice and pen in protest; but unfortunately he wrote badly and spoke not much better. John Taylor perceived more clearly than he expressed the ultimate triumph of commerce and industry at the expense of the less aggressive agrarian arts. It was mere accident that the South as a section represented the agricultural interest. The lines of conflict were economic first, later cultural; the setting, due to sun and soil and the currents of the sea, was sectional.
Agrarian to the core, Taylor argued that Madison’s balance of interests should be abandoned for the dead level of one single dominating interest. But it was already too late, if ever there had been time. The diversity was an accomplished fact, and the nation could only accept it with what grace it might, or disintegrate. The latter was unthinkable; and Calhoun assumed the task of working out some formula which would be compatible with the realities of the situation—which would at once secure the economic freedom of the South and the preservation of the Union.
In denying Madison’s thesis, Calhoun was objecting, not to a theory which held legislation to be compromise, but to a set-up which made it possible for the stronger interests, through control of the machinery of government, to coerce the weaker. He found himself in a situation in which the system of dual representation gave to the particular interest he favored a minority vote. It was therefore threatened with extinction, as Taylor had foreseen it would be, and Calhoun took the only road open: the denial by one interest of the sovereignty of the majority.
Calhoun did more perhaps than any other American to establish the incontestable logic of a single, unified sovereign, but for him the sovereignty did not rest with the national government, or even with the nation. It was rather to be exercised by groups, representing interests, and joined in a federal structure which could function as a whole only by consent of its sovereign parts. These parts happened to be geographical units, but they were also functional or economic units; and it was primarily as such that Calhoun thought of them.
The practical situation out of which the theory of the concurrent veto was developed was the passage of the tariff of 1832 by a Congress in which manufacturing interests were dominant. In that year the steadily rising duties on manufactured products, originally designed to foster the development of native industry, reached a prohibitive peak. It was no longer possible for European nations to sell in the United States the products of their factories; and trade balances were brought back into line by the rapid loss of a foreign market for American agricultural products. Even John Quincy Adams, principal author of the bill, had a dozen years earlier seen in the tariff an “attempt of the manufacturing interest to lay the agricultural and commercial interests under contribution.”
It was all to the good for those sections which derived the bulk of their wealth from industrial activity; but to the agricultural South it meant disaster. So, when protest and argument failed, the South Carolina legislature, under the guidance of Calhoun, passed an ordinance of nullification, forbidding the collection of tariff duties within the state. President Jackson ordered troops to Charleston, but public sentiment recoiled from the use of force, and coercion failed. A compromise was effected; and an economic group had successfully asserted its own sovereignty against that of the federal government.
II
In his “Address to the People of South Carolina” in 1831, and in a letter to Governor James Hamilton, Jr., in August of the following year, Calhoun outlined the major points in his argument. In the course of debate on the tariff and on the Force Bill, acrimonious and heated as it often was, he restated and amplified the thesis, which was to be his point of departure in every important controversy throughout the remainder of his career. The doctrine had been applied to the bank question, to the public land issue, and to slavery, before it appeared in definitive form in the posthumous “Disquisition on Government.” Basically, it is an economic analysis of the problem of sovereignty, with a solution in terms of a practical economic realism. j
Calhoun had been defeated in his fight against the tariff by the single power of the majority, and so it is the legitimacy of that power which he first calls in question. Government by a numerical majority, unrestrained by any power on the part of minority interests to protect them- j selves, is as absolute as any dictatorship, and may by legal means destroy all opposition. Constitutional, as opposed to absolute, government is therefore any system which sets up some other power to balance that of the numerical majority. The basis for this balancing power Calhoun finds in Madison’s organization of society into interest groups, arising from diversity of pursuits or condition. He would give to these interest groups a concurrent voice in legislation, and for the passage of any law involving economic issues would require both a numerical majority of the whole and a concurring majority of each interest group.
All governments, he agrees, derive their authority from the consent of the governed, but only where interests are identical is majority rule just. “Where the interests are the same, that is, where the laws that may benefit one will benefit all, or the reverse, it is just and proper to place them under the control of the majority; but where they are dissimilar, so that the law that may benefit one portion may be ruinous to another, it would be, on the contrary, unjust and absurd to subject them to its will.” Those who make and execute the laws should be held accountable, not only to the public at large, but also to those groups or interests on which the laws actually operate. It is not enough for a law to win the approval of a majority of the whole citizen body; it must also be approved by a majority of those associated with each major interest which will be affected by it. The farmer as well as the manufacturer has a stake, no less real for being different, in a tariff on manufactured goods; and a popular majority for such a tariff may mean only that there are more voters who derive their living from manufacturing than there are who live by the plow. To be just, the law must be acceptable to both groups.
It is conflict of opposing interests which makes difficult the task of preserving free institutions—a conflict as real today when interests are associated with classes as ever it was when “differences of climate, soil, situation, industry, and production” arrayed section against section. When the state rights doctrine was a force in American politics, industry and agriculture were still so localized that interests coincided fairly closely with state lines, but then as now the basis of conflict was economic. The New England states nullified the embargo because the shipping interests were hurt by the measure, and South Carolina’s protest against the tariff was merely an expression by the state legislature of the will of the economic interest which dominated the state. In other words, when a state insisted upon its sovereignty, it was as an economic rather than as a geographical unit that it acted, and the purpose was to secure a purely material advantage to a group of citizens sharing a common interest. It was in reality not the sovereignty of the state that was asserted, but the sovereignty of the interest group. To Calhoun they were the same.
Time and again he refers in his speeches to “those who represent the manufacturing interest on this floor,” or “we who stand for the staple states,” as though he conceived the representation in the Senate to be, actually, by economic interest. In his realistic view a Senator represented not his state as a physical entity, but the economic interests of his constituents. So it was possible for him to suggest that Webster’s change of face on the tariff was due to a change on the part of Massachusetts from a commercial to a domi-nantly manufacturing state, just as his own reversal on the same question came when the tariff no longer served the cause of nationalism but had become the means of destroying the prosperity of his constituents.
His reasoning in debate was always an attempt to show the consequences for different interest groups of the measure under discussion; and it was these interest groups, geographically identified as states, that Calhoun conceived to be the actual seats of sovereignty. “It is the very essence of such a system,” he declared in his famous reply to Webster, “that the sovereignty is in the parts and not in the whole.” Though diverse interests may be united for the achievement of a common purpose, the powers of the general government they set up are delegated powers, and subject to recall by the delegating authority; and the only way to preserve these independent sovereignties, and thereby the freedom of those who owe allegiance to them, is “to give to each co-estate the right to judge of its powers, with a negative or veto on the acts of the others, in order to protect against encroachments the interests it particularly represents. . . .” In Calhoun’s day this negative or veto took the form of interposition by a state to restrain the enforcement of a federal law. In terms of the unlocalized economic interests of today, its expressions are strikes, lockouts, injunctions, and boycotts, and the political activities of pressure groups.
III
The concurrent majority may still be defined for contemporary use as Calhoun defined it, in terms of a governmental structure which gives “to each division or interest, through its appropriate organ, either a concurrent voice in making and executing the laws, or a veto on their execution.” It is necessary only to supply the appropriate content for the terms “division” and “interest.” Though economic interests in Calhoun’s America were geographically localized, we may assume that he would have accepted the great unlocalized interests of today as fulfilling his definition. One of his own examples, given in the “Disquisition on Government,” is the three estates of English parliamentary theory, and these certainly were stratified as classes rather than localized as regions.
But in America, as in Britain, the Industrial Revolution brought into existence new estates, which could not be fitted into the traditional pattern of Peers, Clergy, and Commons; and the governmental structure in both countries, though maintaining an outward semblance of its historical form, hearkened to the concurrent voice of other and varied interests. It was, after all, the pressure of divergent interest groups which made the American Constitution a federal document in the first place.
These interest groups originally exerted their influence in and through the states. A limited suffrage, and the election of United States Senators by the state legislatures, tended to place the actual choice of lawmakers, especially those of the upper house, in the hands of the more substantial citizens. Their representatives, naturally enough, were generally of their own number and had no difficulty in identifying the interests of their respective states with the more tangible interests of those who elected them to public office. Thus, as long as the states were dominated by single interests, the Senate at least did provide some semblance of the functional representation Calhoun claimed for it.
Even within Calhoun’s lifetime, however, improvements in transportation and communication operated to set aside geographical barriers, and interests came increasingly to be identified with non-localized groups. Today there may hardly be said to be an “interest” of South Carolina as distinct from an “interest” of Massachusetts; but the interest of manufacturing in both those states tends to be identified as an entity, in opposition perhaps to the interest of agriculture in the Middle West. Thus the problem facing the central government is not one of harmonizing the demands of South Carolina and Massachusetts as such, but of arriving at a working compromise between those interested in manufacture and those whose livelihood depends on farming.
Thus sectional interests came in time to be replaced by class and occupational interests, rendering inadequate the traditional representation by states. The more powerful groups sought other ways of making known their legislative desires, expressing themselves openly through trade associations, chambers of commerce, and a bewildering variety of business, professional, and labor organizations, and covertly through lobbies. These interests have achieved no formal place in government, unless it be the creation of a new cabinet post as each major interest becomes articulate; but they have none the less made their influence felt in the course of practical politics. Tariff acts and crop reduction measures, highway construction and inland waterways, regulatory taxes and trade agreements, have all been conceived and carried through by special interests.
The pressure group has a bad odor, but its function is legitimate; and it has so far been recognized as such that the complex machinery of congressional and administrative hearings has been evolved for making it a force in government. This is not meant to imply that the pressure group does not often seek selfish ends which are not in the public interest, nor is it meant as a blanket endorsement of methods often doubtful. Yet the pressure group is none the less the only positive means our system permits for making articulate the will of those many interests which are excluded from direct participation in government.
This pressure of interest groups is effective precisely because the only significant difference between a national government and any other organized interest is a difference of degree: a difference, that is, in extent of jurisdiction. The same individual may be subject to several jurisdictions, and his allegiance to each will probably be determined by the power of each over him. Theoretically, government has the greater power, but practically the more potent sanction is often the threat of loss of employment or loss of income; and where such is the case, the individual will be found on the side of his economic interest, in opposition to government, if need be. Thus the union laborer on strike may defy the law, and the corporation stockholder may surreptitiously disobey it, both to the same end. In each case it is the economic interest rather than the state whose sovereignty is recognized, and sovereignty implies a legislative power.
Economic interests have not yet been given a right to make laws, but certainly no law vitally affecting agriculture or industry can be passed by Congress without eliciting some expression of opinion from the interests concerned; and if the law is objectionable, some means of modifying or nullifying it will generally be found. Actually, concurrent approval by the economic interests involved is necessary if laws are to be workable. So we have in fact a functional representation, by economic groups and wholly apart from state lines, though it may operate largely in the dark, and though many of its operations, when they are revealed to us by congressional investigation or newspaper crusade, may shock us no little. The principle on which it works is essentially the concurrent majority principle of Calhoun.
IV
It was a political axiom of the seventeenth century that dominion follows property, and it is still true that political power arises out of economic power. Where rule is by the numerical majority alone, the strongest group will secure control of the machinery of the state, passing laws in its own interest and crushing all opposition. If the operation of finance capitalism or the control of industry by workers’ organizations concentrates economic power in the hands of a small class, the political organization will reflect this economic unity, and the state will wield an actual as well as a nominal sovereignty. It will be, however, in the most complete sense of the word, a totalitarian or absolute state.
The alternative is to make each economic interest powerful enough to resist the encroachments of other interests: to recognize, in other words, the actual sovereignty of interest groups, and to concede to each group a measure of political power. . Whether we make the concession or not, the power and the sovereignty are there. The choice we must make is whether to give legal status to the fait accompli, making possible regulation in the public interest, or to close our eyes and allow economic groups to continue to exercise sovereign powers through under-cover political alliances of the type so well described by Lincoln Steffens.
Where the laws are so made as to enrich one interest or group at the expense of others, the losers will oppose the government which has failed to protect them; and if they are without political strength, the fundamental loyalties of a people may become a disintegrating instead of a unifying force. In the end, the state which loses the loyalty of any substantial portion of its citizens is doomed. If, on the other hand, these interest groups can be brought into a working alliance with government, the strongest of human motives —self-interest—will be enlisted on the side of the state.
But how may the demands of these interest groups be harmonized with those of other groups, and with the general welfare? Calhoun’s answer is that each interest should be represented in the lawmaking body of the nation, and that no action affecting economic questions should be taken without the concurrence of all the major interests concerned. In his own day, with economic interests Corresponding closely to state lines, the solution meant that no action affecting their economic well-being should be taken without the consent of the states concerned. Today it means that economic legislation should have the approval of labor as well as of capital, of consumer as well as producer, of farmer as well as manufacturer. Only by giving to each interest group a voice in the making of the laws can balance between interests be maintained: a balance which is the historic purpose of constitutional government. Its working principle is compromise which will prevent any interest from subjugating the others.
The evolution of political organization in countries where the institutions of government are less rigidly fixed has tended to give such representation to economic and functional groups. In the multi-party system of France, for example, each major interest is represented by a party; and since it is rare that any party commands a majority in the assembly, legislation is usually compromise. More direct, and perhaps more significant for an appraisal of Calhoun, was the representation offered to factory workers’ councils under the short-lived Weimar republic, and the functional interests which made up the provisional economic council. The connection is tenuous, but Konrad Beyerle was influential in molding the institutions of the German Republic, and Beyerle had been a student under Max von Seydel, an admitted follower of Calhoun. More recent still, and most closely approaching genuine functional representation, are the provisions of Article eighteen of the proposed constitution for Ireland, under which forty-three of the sixty members of the Senate would be chosen from five panels, corresponding to five major interest groups.
In this country, however, there exists as yet no legislative chamber in which functional groups may be represented: where accredited spokesmen for capital, management, and labor may themselves propose and enact laws affecting industry, or where farmer and manufacturer may wrestle together with the problems which belong to both. Until we have provided some such institution, we have no legitimate quarrel with the present political methods used by special interests.
Formal changes in governmental structure come slowly and painfully, usually in periods of economic stress, and always at least a generation behind the social or industrial changes which make them necessary. The lag is unavoidable, for we must have time to adjust ourselves to new conditions and to experiment with practical techniques for meeting situations not contemplated in the organic law. Such a technique is the concurrent veto, exercised in a variety of forms by those special interests which, though unrecognized by the Constitution, yet command from most of us every day the sort of allegiance we give to our government only on the Fourth of July.
At best the concurrent veto as now practiced is negative, and at worst it is illegal, corrupt, and tinged with violence; but we must put up with it until we are prepared to give interest groups a positive voice in lawmaking. A hesitant first step toward functional representation has perhaps already been taken in the field of industry, but there is a long way still to go before we may boast aloud of our democratic institutions.
