1836, The Tariff Issue And The Constitution – Guest Essayist: Daniel A. Cotter

 

The Election of 1836: The Tariff Issue, Nullification and the Constitution

The 1836 Presidential election saw Democratic incumbent Vice President Martin Van Buren win the election in a campaign that featured four candidates from the newly-formed Whig Party running against Van Buren by region against a background of Southern threats of nullification and secession, caused chiefly by opposition to federal tariff laws as well as by the issue of slavery. The two-term incumbent, Democrat President Andrew Jackson, decided not to seek a third term and supported his Vice President, Van Buren.  Jackson’s second term and the tariff issue and nullification strategy helped lead to the formation of the Whig Party, which was formed in 1834 in opposition to Jackson and his policies.  The 1836 election was the first in which the Whig Party sought to have a party member as President.  The Whig Party strategy to regionalize the electoral votes in 1836 failed, with Van Buren capturing the Presidency.

The Tariff Acts

The Tariff Act of 1828 was passed by Congress on May 19, 1828.  Labeled by the South as the “Tariff of Abominations,” it was designed to protect Northern interests against the losses they faced from the importation of cheap goods from overseas.  Passed during President John Quincy Adams’ term, the Tariff of Abominations hurt the South because it increased the price of products they bought from the North and also made it difficult for the British to pay for the cotton the South exported to them.  The Tariff of Abominations and Tariff Act of 1832 would lead to the Nullification Crisis, led by South Carolinian John Calhoun.  Calhoun served as Jackson’s vice-president during his first term, but resigned the post in December 1832 to become one of South Carolina’s senators.

The Tariff Act of 1832 was enacted on July 14, 1832.  The Act of 1832 was a protectionist tariff designed to lower the burdens created by the steep tariffs in the Tariff of Abominations.  However, the lowered tariffs did not satisfy the South, leading to the Nullification Crisis.

The Nullification Crisis

The tariff acts of 1828 and 1832 created great resistance in the South, with South Carolina most vocal in its discontent.  Displeased with what the state considered inadequate tariff reductions in the Act of 1832, South Carolina called a state convention where it adopted the Ordinance of Nullification, declaring the tariff acts of 1828 and 1832 null and void within South Carolina after February 1, 1833.  The Ordinance asserted that the tariff acts were unconstitutional and as a result, South Carolina was not bound by them.  As the “Nullification Crisis” continued, South Carolina began military preparations to defend against any Federal attack against the state and threatened secession from the Union.

The action by South Carolina in adopting the Ordinance of Nullification was the first nullification action directed directly at the question of slavery and regional differences, but was not the first time that a state had resisted federal authority by asserting a “state’s rights” theory.  From the beginning of our nation, states had challenged and opposed Federal laws.  Most notably, in 1813, the Virginia Supreme Court refused to accept a mandate from the Supreme Court of the United States, holding that the Constitution did not give the Supreme Court appellate authority over State court decisions.  (The Virginia Supreme Court’s decision was reversed in 1816 by the U.S. Supreme Court in Martin v. Hunter’s Lessee, establishing the Supreme Court’s authority over state courts in matters of federal law).

President Jackson and Congress took immediate action in response to the Ordinance adopted by South Carolina.  On March 2, 1833, Congress passed the Force Bill, which gave Jackson broad presidential powers to enforce the federal tariffs against South Carolina, including the use of the United States Army.  On the same date, Congress, through the lead efforts of Senator John Calhoun and House of Representatives Speaker Henry Clay, passed the Tariff Act of 1833, also known as the Compromise Tariff.  Calhoun and Clay proposed the Compromise Tariff as a solution to the Nullification Crisis.  The Compromise Tariff was designed to reduce the tariff rates gradually from those set by the Act of 1832, with all tariff rates above 20% reduced by one tenth every two years with the final reductions back to 20% coming in 1842.  The Compromise Tariff was acceptable to South Carolina.

On March 15, 1833, the South Carolina convention reconvened and repealed the Ordinance of Nullification.  However, as a means of maintaining pride, the convention nullified the Force Bill on March 18, 1833.  Federal courts did not address the South Carolina actions of 1832, but no Federal court has ever upheld a state’s efforts at nullification.  In 1868, the Supreme Court ruled in Texas v. White that secession by Texas from the United States was illegal.

Conclusion

The Nullification Crisis had its roots in the tariff acts of 1828 and 1832, but also was intertwined with the question of slavery.  This constitutional and sectional crisis was deferred by the Compromise Tariff.  However, in 1860, South Carolina would be the first state to secede from the Union and Civil War would ensue.

Dan Cotter is a Partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies.  He is also Immediate Past President of The Chicago Bar Association. The article contains his opinions and is not to be attributed to Butler Rubin or any of its clients, The Chicago Bar Association, or John Marshall.

6 Responses to “1836, The Tariff Issue And The Constitution – Guest Essayist: Daniel A. Cotter”

  1. Ron says:

    The history of tariffs demonstrates that tariffs cause more internal pain than external solutions, yet here we are again almost 200 years later arguing about initiating strong tariffs on foreign goods.

  2. Ralph T. Howarth, Jr. says:

    The tariff issue later will become central around the turn of the 20th Century on the Populist platform to levy an “income tax” on the wealthy who were deemed unaffected personally by tariffs while the common man paid higher prices on merchandise due to the tariffs. Until then, tariffs were the primary means of income for the federal government. Another plank of the Populist platform was that of direct election of senators. Later, the 16th and 17th amendments would do just that; but the 16th income tax amendment went on the promise that income was not a direct tax on labor. Earnings from labor was not considered passive investment income. It only took a few years for Congress to pervert the definition of the term “income” and applied it to employment earnings such that the common man ended up getting taxed again anyway.

    Secession has been an issue central to what is a state. In the US, the states are not provinces and so are sovereign to themselves. The only difference is that these states have made a league of a trade federation (do not tax each other by tariffs) with a common defense. As much hub-bub is made over secession being “illegal” it flies in the face of what makes a state a state and also that Article V of the federal constitution is an implicit secession provision. Secession is triggered anytime any of the conditions of Article V is not met. If any amendment or constitutional convention arises that does not follow the terms of Article V, then that convention is an act of secession. And secession did occur explicitly upon ratification of the existing federal constitution (the hold-out non-ratifying states continued to operate under the Articles of Confederation for a session) , and once more implicitly upon ratification of the 17th Amendment when states ratified direct election of senators contrary to the constitutional definition of “equal suffrage” of states in the senate. Article V requires state government suffrage in the senate.

  3. Dan Cotter says:

    Ralph,
    Thank you for your comments.

  4. […] that the South felt patently unfair. Read more about the issue and its effect on the 1836 election here[10] as part of Constituting America’s 90-Day […]

  5. Publius Senex Dassault says:

    I cannot imagine any set of circumstance where a “state” deciding to leave a national government is viewed as legal. That is why succession typically successful or prevented by military action. Had we lost the Revolutionary war I am confident the succession [revolutionary] movement would have been deemed illegal.

    I find it ironic the US has recently cheered the break up of the USSR, Iraq, and other nations as the right of people to be sovereign. But would deny that right to Americans, if a section of the US that separation from the US was preferable to remaining in the Union. I think this is where we lose credibility in the world. We are unwilling to live under the principles that we insist others honor.

    PSD

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