ABSTRACT
John C. Calhoun’s constitutional vision is worth studying for several reasons. He was the most creative and influential American constitutional thinker since James Madison and Chief Justice John Marshall. And, he proposed a radically different structure for the United States’ republican empire, one that was sufficiently powerful and coherent that it helped inspire white Southerners, including most of those who did not own slaves, to fight the North in America’s most gruesome war. Just as Hamilton provided through theory and practice the basic contours of the constitutional system that Justice Marshall eventually converted into constitutional law, so Calhoun developed through words and deeds a conception of empire that Justice Taney would temporarily imbed into the legal constitution in Dred Scott v. Sandford} 1
On a more theoretical level, Calhoun’s creative solutions demonstrate the inability of “formal equality” to resolve many constitutional problems, and thus the inherent incapacity of the judiciary, which tends to be instinctively attracted to formal equality to avoid the appearance of bias, to handle many crucial constitutional controversies. Calhoun provided a brilliantly articulated interpretation of the Constitution for those who perceive themselves to be gradual losers in the enduring struggles for wealth and power. Constitutional losers cannot afford the fancy rhetoric, feigned neutrality, and smug sentimentality of winners. They tend to look at real effects as well as abstract principles. They must discuss candidly how wealth and power are actually distributed and employed in any particular constitutional system. They need to invent various constitutional doctrines to protect their vulnerable interests from rival, more dominant powers. Each society must contend with its version of the recurring problems of continuing economic and political subordination, whether it be the actual rights of putatively equal blacks during Reconstruction or the current existence of worker exploitation at home and actual slavery and child labor abroad. Thus, on a variety of levels, we can learn a great deal by temporarily suspending our moral outrage at the antebellum Southerners’ repressive,2 racist politics.
