From Emancipating Slaves, Enslaving Free Men by Jeffrey Rogers Hummel:
From Anatomy of the State by Murray Rothbard:Calhoun's Exposition and Protest defended what has become known as the compact theory of the Constitution. This theory contends that the Constitution was a compact, or contract, among sovereign states. The states had established the central government as their agent to perform specific delegated powers, such as national defense. "The general Government," explained Calhoun in a later public address, "emanated from the people of the several States, forming distinct political communities, and acting in their separate and sovereign capacity, and not from all of the people forming one aggregate political community."
Not only was the central government strictly limited, but if any dispute arose over the extent of these powers, it was the creators of the compact, the states -- not their agent, the central government -- that should be the final arbiter. "The Constitution of the United States is in fact a compact, to which each State is a party," and "the several States or parties, have a right to judge of its infractions."
The compact theory had a long history running back to the Philadelphia Convention of 1787. To ease the Constitution's ratification among an American populace decidedly unfriendly to a consolidated government, the framers had been deliberately vague about the document's exact nature. The Virginia and Kentucky Resolutions of 1798, written by James Madison and Thomas Jefferson, had enunciated the compact theory, as had representatives of the New England states at the Harford Convention during the War of 1812. But the Exposition and Protest added an additional twist: the doctrine of nullification. Calhoun argued that state conventions, the bodies that had ratified the Constitution, could also nullify within individual states any federal law they thought unconstitutional.
The only way the central government could override such state nullifications was through a new constitutional amendment approved by three-fourths of the states. Although this cumbersome doctrine may appear to take states' rights to a logical extreme, the South Carolina political theorist actually intended nullification as a moderate compromise. Rather than promoting disunion, he saw it as the best way to preserve the Union. According to the compact theory, each state still retained the sovereign right to secede. Nullification gave the southern states an alternative way of protecting themselves from majority tyranny while remaining within the Union. Calhoun believed that the only recognition of this "fundamental principle of our system, resting on facts historically as certain, as our Revolution itself, and deductions as simple and demonstrative, as that of any political or moral truth whatever" could ensure "the stability and safety of our political institutions."
...one major political theorist who recognized—and largely in advance—the glaring loophole in a constitutional limit on government of placing the ultimate interpreting power in the Supreme Court was John C. Calhoun. Calhoun was not content with the “miracle,” but instead proceeded to a profound analysis of the constitutional problem. In his Disquisition, Calhoun demonstrated the inherent tendency of the State to break through the limits of such a constitution...
One of the few political scientists who appreciated Calhoun’s analysis of the Constitution was Professor J. Allen Smith. Smith noted that the Constitution was designed with checks and balances to limit any one governmental power and yet had then developed a Supreme Court with the monopoly of ultimate interpreting power. If the Federal Government was created to check invasions of individual liberty by
the separate states, who was to check the Federal power? Smith maintained that implicit in the check-and-balance idea of the Constitution
was the concomitant view that no one branch of government may be conceded the ultimate power of interpretation: “It was assumed by the people that the new government could not be permitted to determine the limits of its own authority , since this would make it, and not the Constitution, supreme.”
The solution advanced by Calhoun (and seconded, in this century, by such writers as Smith) was, of course, the famous doctrine of the “concurrent majority.” If any substantial minority interest in the country, specifically a state government, believed that the Federal Government was exceeding its powers and encroaching on that minority, the minority would have the right to veto this exercise of power as unconstitutional. Applied to state governments, this theory implied the right of “nullification” of a Federal law or ruling within a state’s jurisdiction.
In theory, the ensuing constitutional system would assure that the Federal Government check any state invasion of individual rights, while the states would check excessive Federal power over the individual. And yet, while limitations would undoubtedly be more effective than at present, there are many difficulties and problems in the Calhoun solution. If, indeed, a subordinate interest should rightfully have a veto over matters concerning it, then why stop with the states? Why not place veto power in counties, cities, wards? Furthermore,
interests are not only sectional, they are also occupational, social, etc. What of bakers or taxi drivers or any other occupation? Should
they not be permitted a veto power over their own lives? This brings us to the important point that the nullification theory confines its checks to agencies of government itself. Let us not forget that federal and state governments, and their respective branches, are still states, are still guided by their own state interests rather than by the interests of the private citizens. What is to prevent the Calhoun system from working in reverse, with states tyrannizing over their citizens and only vetoing the federal government when it tries to intervene to stop that state tyranny? Or for states to acquiesce in federal tyranny? What is to prevent federal and state governments from
forming mutually profitable alliances for the joint exploitation of the citizenry? And even if the private occupational groupings were to be given some form of “functional” representation in government, what is to prevent them from using the State to gain subsidies and other special privileges for themselves or from imposing compulsory cartels on their own members?
In short, Calhoun does not push his pathbreaking theory on concurrence far enough: he does not push it down to the individual himself.
If the individual, after all, is the one whose rights are to be protected, then a consistent theory of concurrence would imply veto power
by every individual; that is, some form of “unanimity principle.” When Calhoun wrote that it should be “impossible to put or to keep it [the government] in action without the concurrent consent of all,” he was, perhaps unwittingly, implying just such a conclusion. But such
speculation begins to take us away from our subject, for down this path lie political systems which could hardly be called “States” at all. For one thing, just as the right of nullification for a state logically implies its right of secession, so a right of individual nullification would imply the right of any individual to “secede” from the State under which he lives.
