My article on nullification, entitled "States' Fights", appears in the July 2010 issue of The American Conservative. It emphasizes contemporary developments. For The Huffington Post, I have expanded on the history of nullification plus added some information that might be of particular interest to progressives. I'll warn you up front that this article is lengthy. It's an important but tricky subject--controversial and misunderstood. It deserves detail and requires nuanced explanation.
I know it's a thankless task to speak to progressives about states' rights. It invites a knee-jerk response. It conjures images of the Klan, of lynchings and burnings, of Bull Connor and Lester Maddox. I understand why. Modern liberalism usually means putting a premium on the value of equality above all else. "States' rights" has been the rallying cry for several well-publicized crusades for inequality over the past 150 years. Keep in mind, though, that these crusades for slavery and segregation--in the Civil War, Jim Crow, and Civil Rights eras--were manifestations of a single cause: white supremacy, with a special emphasis on the southern economic elite. The real evil was the end, not the means.
On an international scale, all of the great political monsters of the past century have exemplified the opposite of the decentralism principle that underlies states' rights. Totalitarianism, in both its Communist and Fascist forms, was about concentrating power in the hands of the few, at a level far removed from the common people. For instance, it was not as though Hitler had too great a regard for the desire of local people to govern themselves. Quite the opposite.
Resistance to political centralization and its frequent companion, economic centralization, is not antithetical or alien to the progressive tradition. After all, decentralization and community-based economics are two of the Ten Key Values of the Green Party, and grassroots democracy is one of its Four Pillars. And there has always been an anti-statist, anti-bureaucratic variety of socialism. For every Marx, Lenin, Trotsky, Stalin, and Mao, there has been a Bakunin, Proudhon, Kropotkin, Goldman, and Orwell.
Deeper in American soil, there is the decentralist tradition of Thomas Jefferson, John Taylor of Caroline, Samuel Adams, and Thomas Paine. Sam Adams, the great democrat of Boston, was an Anti-Federalist who thought "the best government" was the one which "played the least part in men's daily affairs" and who believed in a "negative political theory of natural rights" which "caused him to fear every increase in the central government's power" (in the words of biographer J.C. Miller).
Anticipating Kropotkin's Mutual Aid thesis, Tom Paine wrote, in The Rights of Man, "Great part of that order which reigns among mankind is not the effect of government. It has its origin in the principles of society and the natural constitution of men. It existed prior to government and would exist if the formality of government was abolished. The mutual dependence and reciprocal interest which man has upon man, and all parts of civilised community upon each other, create that great chain of connection which holds it together." Paine also believed that "the more perfect civilisation is, the less occasion has it for government, because the more does it regulate its own affairs and govern itself."
In the history of the United States, nullification has sometimes been a means of advancing freedom and democracy. Rooted in an honorable tradition, it can be a powerful tool for the people and a means of curbing centralized power. Nullification is the repudiation or ignoring of a federal law by a state government. It is also known as interposition. This deliberate failure to enforce federal statutes or judicial rulings within states is normally based on constitutional grounds.
In recent decades, the first organized effort to nullify federal laws came from the Left and the libertarian Right in the form of medical marijuana. What began in California, in 1996, as a challenge to the Controlled Substances Act of 1970, has spread with more states attempting to legalize cannabis, for both medicinal and recreational use. In more recent years, constitutional conservatives in the Republican Party and social conservatives in the Democratic Party have used nullification to protect Second Amendment liberties and to block the Real ID Act of 2005 (a federal effort to standardize driver's licenses). Most recently, there have been state efforts to overturn or block the national health care reform act. In comparison to the medical marijuana, firearms freedom, and national identification card endeavors, the anti-health care drive is different because of its lopsidedly partisan nature.
Pot smokers, Tea partiers, and other nullification advocates may not realize it, but their efforts are in a direct line of descent from the Principles of '98 enunciated by Thomas Jefferson and his allies. These principles represented a challenge to an oppressive and centralizing Federalist Party led by Alexander Hamilton and President John Adams. Ironically, Jefferson himself was vice president during this time. His rejection of the policies of his old friend Adams would set the stage for a successful rematch with Adams in the pivotal election of 1800.
While Jefferson was clearly the most important figure behind the Principles of '98, including nullification, they came out of a deep American tradition of revolutionary decentralization and disobedience. There were seventeenth-century examples such as Roger Williams, Anne Hutchinson, and John Wise. Late colonial and early revolutionary manifestations of this spirit, during the 1764-76 period, included the Committees of Correspondence, Stamp Act Congress, Sons of Liberty, Liberty Trees and Liberty Poles, Boston Tea Party, Minutemen, Patrick Henry's speech ("Give me Liberty, or Give me Death!"), Gadsden flag ("Don't Tread on Me" rattlesnake), Paine's Common Sense, and Jefferson's own Declaration of Independence.
The confederal and early constitutional period saw the Shays' Rebellion, Anti-Federalist opposition to the newly-proposed Constitution, and the Whiskey Rebellion. All of these signified not only state liberty but also local and individual liberty. In other words, self-government. This was the ideological and historical milieu out of which came Jefferson's attempt to encourage resistance to the Alien and Sedition Acts and other tyranny-inducing, freedom-denying activities of the Adams administration.
In 1798, the Kentucky and Virginia Resolutions were secretly written and advanced by Vice President Jefferson and his ally in the U.S. House of Representatives, James Madison. The resolves were in response to federal laws intended to silence opponents of the Federalist Party. At a time when war with France seemed imminent, three Alien Acts were passed to extend the residency requirement for naturalization and to deport any resident aliens considered "dangerous to the peace and safety of the United States." With newspapers being shut down, and writers and speakers being fined and jailed through federal criminal charges, the Sedition Act was criticized by Democrats for violating both the First and Tenth Amendments. Jefferson and Madison grounded their resolutions in the compact theory, which sees the Constitution as a compact or agreement between the states. Their perspective is significant, given their roles as author of the Declaration and "father of the Constitution," respectively, and as the driving forces behind the Bill of Rights.
In the Kentucky Resolution, Jefferson asserted that the necessary and proper clause was being interpreted by the federal government in such a way that it was leading to "the destruction of all limits prescribed to their power by the constitution." He wrote, "Words meant by that instrument to be subsidiary only to the execution of the limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be taken so as to destroy the whole residue of the instrument." Jefferson believed that state governments have a right to interpret the Constitution, arguing "That the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode and measure of redress."
Jefferson understood that every state reserved to itself "the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force." His original draft included an explicit mention of nullification: "Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits." The final version of the resolution, enacted by the legislature through the sponsorship of John Breckinridge--future U.S. attorney general under Jefferson--did not contain the words nullification and nullify but ended with the same thought, calling on other states to join the commonwealth of Kentucky in "declaring these acts void and of no force."
The Virginia Resolution--written by Madison in support of strict construction, states' rights, and civil liberties--was guided through the legislature by his cousin John Taylor, the great agrarian philosopher and statesman. Madison argued that the powers of the federal government are derived from the compact between the states and these powers are "limited by the plain sense and intention of the instrument constituting the compact." When powers not granted by the compact are dangerously exercised by the federal government, states "have the right, and are in duty bound, to interpose [intervene] for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them." Always more conservative than Jefferson, Madison had the language "void, and of no force or effect," in regard to the Alien and Sedition Acts, removed from the final version of the resolution approved by the legislature, but declaring the federal laws to be "unconstitutional" clearly implied nullification.
Contrary to the hopes of Jefferson and Madison, no other states joined in the nullification effort. Hamilton viewed the Kentucky and Virginia Resolutions as "a very serious business." Writing to Senator Theodore Sedgwick (F-MA), in early 1799, he claimed that the state actions were an attempt to "destroy the Constitution," evidence of a "conspiracy to overturn the government," and inducement for attack by "a hostile foreign power." He argued that the federal government "must attack and arraign its [domestic] enemies." Hamilton's long-term plan included the raising of a large military force to be sent toward Virginia, at which time measures would be "taken to act upon the laws & put Virginia to the Test of resistance."
While the New England states rejected nullification in 1799, viewing it as a harbinger of insurrection and civil war, this bastion of Federalists changed its tune when President Jefferson pursued policies not to its liking eight years later. The state governments of Massachusetts, Connecticut, and Rhode Island threatened to ignore the Embargo Act of 1807 because of perceived unconstitutionality. Rhode Island, the smallest and most radical state, explicitly used interposition language in its objection.
The War of 1812, symbolizing additional disruption in shipping, was unpopular in New England. States officially resisted federal authority to mobilize the state militias and enforce a new embargo act. Objecting to federalization of the state militia, in 1812, the assembly of Connecticut urged noncompliance, arguing, "It must not be forgotten, that the state of Connecticut is a FREE SOVEREIGN and INDEPENDENT state; that the United States are a confederacy of states; that we are a confederated and not a consolidated republic."
The following year, Governor Martin Chittenden ordered the recall of that portion of the militia that had been led out of Vermont: "It has been ordered from our frontiers for the defence of a neighboring State, and has been placed under the command and at the disposal of an officer of the United States, out of the jurisdiction or control of the Executive of this State." When the order was delivered, the governor's representative was arrested by federal authorities. Chittenden backed down when a resolution was introduced into Congress calling for charges of treason to be drawn against him.
Moving ahead two centuries, too bad no governor had the principles and guts to attempt defiance in the face of President Bush's sending of state National Guard units to Iraq. In 2005, a few western governors complained that too many Guard members were deployed overseas as the wildfire season approached, but nobody ordered them to return to their states. There have been no official condemnations or political showdowns over the fact that more state troops are serving on the frontlines in Iraq and Afghanistan than any previous war in American history. With the federal government bipartisanly and inexorably committed to empire and war, the peace movement could use a little states' rights in the 21st century.
In 1814, the General Court of Massachusetts invoked "the sovereignty reserved to the states," opining, "We spurn the idea that the free, sovereign and independent State of Massachusetts is reduced to a mere municipal corporation, without power to protect its people, and to defend them from oppression, from whatever quarter it comes. Whenever the national compact is violated, and the citizens of this State are oppressed by cruel and unauthorized laws, this Legislature is bound to interpose its power, and wrest from the oppressor its victim."
When President Madison attempted to create national conscription, Daniel Webster denounced the draft attempt as "Napoleonic despotism." He asked, "Where is it written in the Constitution, in what article or section is it contained, that you may take children from their parents, and parents from their children, and compel them to fight the battles of any war in which the folly or the wickedness of government may engage it?" By this time, radical "blue light" Federalists were calling for secession from the union. Governor Caleb Strong of Massachusetts began secret negotiations with the British government to effect a separate peace treaty with the state.
Delegates from five New England states met for the Hartford Convention in 1814-15. In addition to proposing constitutional amendments to prevent recurrence of contemporary national ills, the convention declared that the region had a duty to resist unconstitutional violations of state sovereignty. There was no resolution in favor of secession, but when news of the war's end, with an American victory, reached Washington a few weeks later, the convention was discredited and war supporters successfully tagged Federalists with an image of treason.
Federalist opposition to political centralization during the War of 1812 was not completely opportunistic. The Constitution was a dramatic strengthening of the central government compared to the Articles of Confederation, but it still promised a federal system--not a unitary or consolidated one. According to Madison in Federalist no. 45, the federal government would be focused "principally on external objects, as war, peace, negotiation, and foreign commerce," while the state governments would oversee "all the objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." Obviously, it has not worked out that way.
The Supremacy Clause of the Constitution, written in 1787, refers to the founding document and to federal laws and treaties made in pursuance thereof as "the supreme Law of the Land" and requires that "the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." The Tenth Amendment to the Constitution, written in 1789, provides that the "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The amendment was added at the insistence of the most liberal and democratic citizens of their day: the Anti-Federalists.
The federal balance between the Supremacy Clause and the Tenth Amendment was maintained while each level of government stuck to its promised and constitutional areas of concern. The balance was slowly destroyed as federal power intruded into areas formally--and formerly--reserved to the states. Beginning with the Marshall court in the early nineteenth century, with its invention of the non-constitutional power of judicial review and its creative use of constitutional loopholes, the federal judiciary facilitated this growing imbalance. The lack of objectivity, fairness, and strict construction ought to have been no surprise, since the "referee" was a member of one of the two competing "teams."
By the early 1820s, it was clear that states' rights were being largely ignored by all three branches of the federal government. Not only was the Supreme Court refusing to uphold the Tenth Amendment, but it was handing down rulings which curbed the power of states to make decisions for themselves. Late in his life, when writing his autobiography in 1821, Jefferson called federal judges "sappers and miners" who were "steadily working to undermine the independent rights of the States, and to consolidate all power in the hands of that government in which they have so important a freehold estate." Thus, the Supremacy Clause was upheld while the Tenth Amendment was ignored.
Thomas Jefferson's commitment to states' rights emanated from his commitment to individual freedom. As historian Charles Wiltse puts it, he wished to "secure the sphere of the state against the encroachments of the federal authority" because he believed "the small unit better adapted to preserve the liberty of individuals, and more likely to promote their happiness." For Jefferson, decentralization was linked to liberty and democracy. His vision was of a land populated by self-governing individuals. In the 1810s, his proposed system of ward-republics was an effort to decentralize and democratize the American republic as much as possible. It was grounded at the ward level with face-to-face assemblies of the citizens, who would elect representatives to the county level, which would then send representatives to the state level, and on up to the national level. All government officials within the ward-republic would be elected by the people and each level would have an assigned sphere of responsibility.
Libertarianism and populism are not the same thing, but within the Jeffersonian framework they are usually compatible. Sometimes the values of freedom and democracy clash, but more often they do not. Conversely, show me a statist and you will also be showing me an elitist. Rule by the few contradicts decentralized power and individual rights. Although Jefferson and his Virginia ally John Taylor supported states' rights and nullification, they were not enthusiasts of sectionalism or secession. Jefferson resisted secession on practical, not theoretical, grounds. His letters on the subject reveal mixed emotions. Writing to William Crawford, in 1816, he was willing to concede the right of secession: "If any state in the Union will declare it prefers separation . . . to a continuance in Union . . . I have no hesitation in saying, 'let us separate.'" On the other hand, he considered the Missouri Compromise of 1820 to be a "fire-bell in the night" and the death "knell of the Union" because it represented growing sectionalism. He viewed this development with great regret.
It is important to note that the Principles of '98 were not the exclusive property of slavery advocates as the nineteenth century unfolded. Opposition by Yankee heirs of the Puritans to the War of 1812 and attendant unconstitutional measures have been noted. Dixie scions of the Cavaliers would make famed use of nullification a decade later, thereby giving a certain indelible reputation to the principle, but we will see that this was not the last word on the subject in the 1800s.
John Calhoun of South Carolina was a remarkable politician and authentic intellectual, but he was also an ambitious man whose career was marked by a gigantic flip-flop from nationalism to sectionalism. The scent of opportunism is discernible. Having failed to gain the presidency as a National Republican centralizer, Calhoun eventually became a staunch defender of states' rights. But this defense was apparently motivated by factors quite different from those which spurred Jefferson. Jefferson was motivated by concern for civil liberties and popular control of government. Calhoun was primarily interested in protecting slave-based plantation society and advancing his own career. Unlike Jefferson, Calhoun glorified slavery, championed aristocracy, supported central banking, and embraced militarism. Calhoun espoused Hamiltonian economics, received the support of many former Federalists when he ran for President in 1824, assisted the Whig Party in the mid 1830s, and repeatedly tried to thwart leading Jeffersonians within the Democratic Party. An aristocrat and slavocrat, Calhoun was not a democrat, egalitarian, or libertarian. He was not a follower of Jefferson.
Slavocracy was an ideology of most large farmers in the Old South. It viewed slavery as an integral and beneficial part of southern culture. Far from seeing slavery as an immoral institution or necessary evil, which had been the perspectives of many southern founding fathers, this ideology touted African enslavement as a positive good ordained by God and Nature. The wealthy planters de-emphasized or rejected the principle of rule by the common people. This was a repudiation of Jeffersonianism since support for democracy is the most important of its tenets and the one from which the others are largely derived. Instead, slavocrats emphasized social hierarchy and aristocracy based on birth and land (not talent, intellect, or morality). The tail was allowed to wag the dog, with rhetorical honor being paid to the Man of Monticello while some of his political principles were pressed into the service of slavery and other aspects of a sanctified southern tradition.
In 1848, Calhoun specifically criticized Jefferson for holding "an utterly false view of the subordinate relation of the black to the white race in the South." According to Calhoun, Jefferson's proposition that all men are created equal contained "not a word of truth in it" and this great error eventually produced "poisonous fruits". In complete contrast to Jefferson, Calhoun had contempt for the concept of natural rights.
Jefferson was among those who, in his words, "identify themselves with the people, have confidence in them." He wrote, "The influence over government must be shared among the people," and "Unless the mass retains sufficient control over those intrusted with the powers of their government, these will be perverted to their own oppression, and to the perpetuation of wealth and power in the individuals and their families selected for the trust." He also wrote, "The first principle of republicanism [which, in Jefferson's view, was as close as practicable to democracy] is, that the lex-majoris partis [law of the majority] is the fundamental law of every society of individuals of equal rights." On the other hand, Calhoun wrote, "The will of a majority is the will of a rabble. Progressive democracy is incompatible with liberty. Democracy is leveling--this is inconsistent with true liberty. Anarchy is more to be dreaded than despotic power."
In some ways reprising the role of Jefferson in 1798, Calhoun secretly advocated nullification thirty years later. When the "Tariff of Abominations" was enacted by Congress in 1828, it became, and remains, the highest tariff in U.S. history. It was designed to protect industry, mainly in the North. Southern planters were on the losing end because they were forced to pay higher prices for northern-manufactured products and were faced with declining cotton exports because declining British exports reduced Brits' ability to pay for southern-grown products. Amidst outrage among his social class in his home state and throughout the South, Calhoun responded with the anonymous booklet South Carolina Exposition and Protest, which included "Protest Against the Tariff of 1828 and the Principles of Nullification." Vice President Calhoun's authorship became known soon after publication in December 1828.
Although the tariff had been signed into law by President J.Q. Adams and incoming President Andrew Jackson was a southerner, Jackson supported the tariff. Jackson was a Jeffersonian who supported states' rights but he also supported the union and did not see any constitutional violation in the high tariff. The conflict between President Jackson and Vice President Calhoun would continue for the next four years and would escalate when it became clear that Martin Van Buren, not John Calhoun, would be Jackson's designated successor. In 1830, a Jefferson Day dinner was the occasion for the famous dueling toasts. Looking at Calhoun, Jackson raised his glass, saying, "Our union: It must be preserved." Calhoun was shaken but did not back down, toasting in response, "The union: Next to our liberty, most dear."
The Tariff of 1832 reduced tariff rates but was still too abominable for Calhoun and his allies. The South Carolina legislature adopted the Ordinance of Nullification against the new tariff. The governments of Virginia, North Carolina, and Alabama also issued proclamations of condemnation. In December, Jackson proposed a lower tariff as a compromise but within a week he publicly declared, "Disunion by armed force is treason. Are you ready to incur its guilt?" The president warned a congressman from South Carolina, "If one drop of blood be shed there in defiance of the laws of the United States, I will hang the first man of them I can get my hands on to the first tree I can find." Calhoun resigned the vice presidency at the end of December 1832 in protest, but he was already a lame duck who was scheduled to be replaced by Van Buren two months later. In March 1833, Congress authorized the president to use force to ensure federal law was executed in the states. South Carolina nullified the Force Bill, but a lower, compromise tariff proposed by Henry Clay passed the same day. This allowed the state to rescind its nullification, thus averting an armed crisis.
In his Disquisition on Government, Calhoun considers anarchy to be "the greatest of all curses." Not tyranny. While he calls liberty "among the greatest of blessings," in his view, it is "not so great as that of protection" (i.e., order, security). For him, "when the two come into conflict, liberty must, and ever ought, to yield to protection." As an elitist and racist, Calhoun adds, "It is a great and dangerous error to suppose that all people are equally entitled to liberty. It is a reward to be earned, not a blessing to be gratuitously lavished on all alike--a reward reserved for the intelligent, the patriotic, the virtuous and deserving, and not a boon to be bestowed on a people too ignorant, degraded and vicious to be capable either of appreciating or of enjoying it."
George Fitzhugh of Virginia, a fellow pro-slavery philosopher in the Antebellum era, shared Calhoun's disdain for Jefferson and dread of too much freedom. In Cannibals All!, Fitzhugh criticizes Jefferson's "fundamental principles" as leading to anarchy, and pronounces Jefferson's character and philosophy in a post-revolutionary context to be "useless" and "dangerous." Fearing anarchy, Fitzhugh endorses "Sovereignty of Society" over "Sovereignty of the Individual." He explicitly rejects Jefferson's declaration that governments "derive their just powers from the consent of the governed."
For Fitzhugh, aristocracy based on force is the best government. Democracy is equated with anarchy. He boasts, "In the county in which we live, there are eighteen thousand souls, and only twelve hundred voters. But we twelve hundred, the governors, never asked and never intend to ask the consent of the sixteen thousand eight hundred whom we govern. Were we to do so, we should soon have an 'organized anarchy.'" He also takes pride in the fact that "Southern institutions are far the best now existing in the world" (1857).
Answering the question, What is the real problem of both North and South, Fitzhugh replies, "We must, in all sections, act upon the principle that the world is 'too little governed.' You of the North need not institute negro slavery, far less reduce white men to the state of negro slavery. But the masses require more of protection [order], and the masses and philosophers equally require more of control." In their embrace of aristocracy and authoritarianism, and their rejection of natural rights and individual liberty, Calhoun and Fitzhugh were the opposite of Jefferson.
The most famous political defenders of slavery and states' rights during the pre-Civil War period--namely Calhoun, John C. Breckinridge, Jefferson Davis, and Alexander Hamilton Stephens--were not Jeffersonians. Thomas Jefferson's principled support for states' rights and real (if personally inconsistent) opposition to slavery have been maligned by a largely imagined link to later southern leaders. These men were far more committed to political aristocracy, extensive landholding, and human bondage than was Jefferson.
In these men, the ideas undergirding the Revolution of 1800--things like democracy, individualism, human freedom, near-pacifism, liberty of conscience, and republican simplicity--were either absent or transformed into means for a far different end (preservation of a plantation-dominated society built on slave labor). All kinds of justifications or rationalizations were brought forth to defend the southern status quo, from passages in the Bible to criticism of "wage slavery" in the North, but these had little to do with Jefferson.
Following Calhoun, Davis "rejected the individualistic heritage of Jefferson and Jackson for an ideal of an organic slaveholding community" (Wallace Hettle, The Peculiar Democracy). This ideal included disparagement of majoritarianism (democracy) and the southern yeomanry (small farmers). In contrast to Jefferson's hostility toward incipient capitalism and its industrial trappings, Davis and Breckinridge were boosters of the early railroad business and its dependence upon government largesse. Federal support for internal improvements was an important component of Hamiltonian ideology. It violated Jeffersonian support for laissez-faire economics and frugal government. Today it would be considered a form of corporate welfare--something beloved by chamber of commerce types who object to high government spending and taxing except when it benefits themselves. It is also telling that while Jefferson attempted to promote the "Quaker system" of peace, Calhoun, Davis, and Breckinridge each served as Secretary of War (USA, USA, and CSA, respectively).
Less known than Calhoun but more representative of the Jeffersonian tradition was use of nullification by the abolitionist movement. The Fugitive Slave Act was a controversial part of another legislative balancing act partially crafted by Clay: the Compromise of 1850. It required the return of escaped slaves, even when caught in non-slave states. This sparked outrage among anti-slavery advocates in free states, including many Conscience Whigs and Free Soil Democrats. The law triggered defiance of the federal government and its pro-slavery policies.
Within the abolitionist movement, William Lloyd Garrison, Lysander Spooner, and other nonviolent anarchists were leaders in opposing the act. Garrison led a meeting in 1851 that exclaimed, "We execrate it, we spit upon it, we trample it under our feet." Spooner, an ardent Jeffersonian, wrote pamphlets encouraging jury nullification--verdicts of "Not guilty" because the law itself was unjust--for those brought to trial for assisting runaway slaves. Carl Schurz, future Union general, U.S. senator, and Interior secretary, was an early leader of the just-formed Republican Party in Wisconsin. He was an advocate for states' rights and an opponent of slavery in the late 1850s.
A handbill circulated in Milwaukee called for the creation of a league to defend their "State Sovereignty," "State Courts," and "State and National Constitutions, against the flagrant usurpations of U.S. Judges, Commissioners, and Marshals, and their Attorneys." Four years after passage, the Wisconsin supreme court declared the fugitive law unconstitutional. Judge Smith used the compact theory of the Constitution to nullify the law within the state, refusing to accept the notion that "an officer of the United States, armed with process to arrest a fugitive from service, is clothed with entire immunity from state authority, to commit whatever crime or outrage against the laws of the state." In 1859, the Wisconsin legislature endorsed the compact theory and quoted from the Kentucky Resolution of 1798 in its proclamation condemning the "Bloodhound Law."
Massachusetts also embraced nullification, making it illegal for a state official to enforce the fugitive law. Connecticut, Rhode Island, Maine, Michigan, and Kansas joined in enacting personal liberty laws that prevented federal officials from using local jails and hindered enforcement in other ways. The Underground Railroad itself was a large-scale example of civil disobedience of the federal government, a type of "personal nullification" of federal laws based on fidelity to constitutional or moral principles. If more American states had officially nullified and more American citizens had personally nullified the Fugitive Slave Act, fewer escaped slaves would have had to go all the way to Canada to find safety and freedom. The infamous Dred Scott v. Sandford decision handed down by the Supreme Court in 1857 was condemned as unconstitutional by Frederick Douglas, who termed it "an open, glaring, and scandalous issue of lies."
During the Gilded Age and Progressive Era, liberals in the Democratic Party retained their traditional belief in states' rights, arguing that the economic and political abuses of the monopolistic robber barons could be mostly curbed at the state and local level, and by conscientious application of federal anti-trust laws. This was also the view of insurgent Republicans like Robert La Follette. According to historian Gabriel Kolko, La Follette "spoke for the small businessman and for true, unfettered competition," whereas the Morgans and Rockefellers desired self-serving industrial order via the U.S. government.
The alternative approach, which ultimately triumphed, was the establishment Republican view, later adopted by Woodrow Wilson: using the power of big government to offset the power of big business. We know how this story turns out. Federal regulation has often served to undercut more honest and progressive state attempts. More often than not, regulators work for private interests rather than the public interest as they are co-opted by the very companies and banks they are supposedly policing. In 1908, George W. Perkins, a J.P. Morgan & Co. partner who was close to TR, told an audience at Columbia University that "managers of the giant corporations would welcome supervision by the federal government" (in the words of the newspaper wire story). The Washington bureaucracy is more of a lapdog than a watchdog, which is precisely what Wilson and Theodore Roosevelt had in mind. It's all in Kolko's classic book The Triumph of Conservatism.
William Jennings Bryan, the Great Commoner, did not support bureaucratic government. For example, in 1906, he criticized the "socialistic" civil service system for being out-of-touch with average citizens. Under the leadership of Bryan and other progressives, the 1896 Democratic platform proclaimed, "During all these years the Democratic Party has resisted the tendency of selfish interests to the centralization of governmental power. . . . Under its guidance and teachings the great principle of local self-government has found its best expression in the maintenance of the rights of the States and in its assertion of the necessity of confining the general government to the exercise of the powers granted by the Constitution of the United States." Similar endorsements of states' rights were written into the 1908 and 1912 platforms.
Many Bryan Democrats lived in the South and were segregationists, but it would be a mistake to view their support for states' rights as mere cover for institutionalized racism. While this may have sometimes been the case, decentralization pre-dated the Missouri Compromise, Civil War, and Jim Crow. It was in the DNA of the Democratic Party, from the Anti-Federalists to Jefferson to Jackson.
In 1894, Governor John Peter Altgeld (D-IL) objected to President Cleveland's decision to send in federal troops to break up the Pullman strike, protesting that it was an insult to the people of Illinois and a "violation of a basic principle of our institutions." Four other governors subsequently informed Cleveland, "You are notified that you may not feel called upon by the plea of any alarmist to use United States troops here unless requested by State authority." In this instance, Cleveland was using federal troops to violate states' rights and the positive state to defend corporate power. With his Jefferson-Jackson roots, former Senator Lyman Trumbull (R-IL) was appalled by Cleveland's use of court injunctions and federal troops. Trumbull and Altgeld were enemies of injustice and allies of Bryan. Trumbull, author of the Thirteenth Amendment, which abolished slavery, and the Civil Rights Act of 1866, was a personal mentor of Bryan and supported the Populist Party late in his life. Altgeld, a friend of labor and law partner of Clarence Darrow, backed Bryan in the 1896 and 1900 elections.
The victory of the corporate state, in the guise of "progress," was not the only defeat for liberal values during the Progressive Era. Using the commerce clause loophole of the Constitution, a federal police force was established in 1908 under Theodore Roosevelt that would later be renamed the Federal Bureau of Investigation. It was a significant intrusion by Washington into a traditional area of state and local responsibility: criminal law enforcement. The FBI began taking modern shape during the Red Scare of the late 1910s and longtime director J. Edgar Hoover began his career as an assistant to repressive Attorney General A. Mitchell Palmer during the Wilson years. Socialists, anarchists, pacifists, progressives, populists, and average Americans who questioned the nobility of the imperial European bloodletting were targeted by the Sedition Act and the Espionage Act.
It was the heirs of Bryan and La Follette--liberals who had a traditional respect for the Constitution and individual rights--who were lonely voices in the 1940s. They raised objections to federal agencies that could be used as tools of oppression: the FBI and the CIA. As a committee chairman, Senator Burton Wheeler (D-MT) twice killed attempts to legalize government wire-tapping. In 1940, Wheeler publicly criticized Hoover and the FBI for violating civil liberties while conducting investigations.
Senator Edwin Johnson (D-CO) was one of only two senators to raise concerns about the Central Intelligence Act of 1949. He called it "very radical legislation," warning that the CIA "might send its men inside the United States." Citing Senator George Norris (R-NE) on the FBI nine years earlier, Johnson cautioned against creating a Gestapo and worried about the Pentagon's power. Senator William Langer (R-ND) also used the Gestapo analogy for the newly-created CIA.
A full three years before Joseph McCarthy's speech in Wheeling, West Virginia, the Truman administration launched what has been called "the most extensive drive against civil liberties since the enactment of the Alien and Sedition Laws at the close of the eighteenth century." Under Truman's leadership, big government liberals unveiled the attorney general's list of subversive organizations, created the federal employee loyalty program, and prosecuted "seditious" individuals under the Alien Registration Act. Truman's foreign policy fearmongering played a role in fanning domestic fears of Communists. As a Hubert Humphrey biographer puts it, "The anti-Communism crusade abroad inevitably led to McCarthyism at home."
Traditional liberals and small government conservatives who opposed or questioned what they viewed as the militaristic and imperialistic nature of the Cold War were denounced as either full-fledged Communists or unwitting dispensers of Soviet propaganda. Senator Robert Taft (R-OH), an advocate of limited, constitutional government, and a man with impeccable all-American credentials, was called "the Kremlin's candidate" for president in 1952 by international banker-turned-leading "liberal" W. Averell Harriman.
What if the Tenth Amendment and other constitutional constraints had been honored and the federal government had not created first a national police force and then an international secret police force? We might have been spared the creation of a sprawling, expensive, and invasive national security apparatus. Tools of repression and subversion would not have been available to target civil rights, peace, and anti-establishment activists (e.g., FBI vs. MLK, COINTELPRO of the FBI, Family Jewels of the CIA). Big government is not always the champion of the "little guy" or the liberator of the oppressed. More often than not, overweening public power is an oppressor . . . working hand-in-hand with well-heeled private power. The New Left understood this. Do we?
Unfortunately, mid-twentieth-century examples of states' rights tended to center around the sectional and racial politics associated with Calhoun, not with the freedom and equality causes of Jefferson, the abolitionists, the populists, and the civil libertarians. Nullification resolutions were adopted by Virginia and Florida in the 1950s after the Supreme Court outlawed segregation in the public schools through Brown v. Board of Education. The Force Bill of 1833 was used by President Eisenhower to enforce the integration of Little Rock, Arkansas, public schools in 1957. Eisenhower cited the Fourteenth Amendment with its equal protection of the laws; Governor Orval Faubus cited the Tenth Amendment with its powers reserved to the states.
Martin Luther King Jr. pointed to the subject, and Governor George C. Wallace, in his famous "I Have a Dream" speech of 1963: "I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; one day right there in Alabama, little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers."
In December 2009, when Tennessee legislator Susan Lynn announced plans for a nullification law, with health care reform in mind, her Democratic colleague Mike Turner replied, "Susan Lynn is yearning for times gone by. Maybe we could put the poor people back to sharecropping and slavery and let the people up at the big house have all the nice things. We've already had that fight about states' rights." Yes, it's race-baiting, ignorant, and ad hominem, but it's grounded in actual, albeit cherry-picked, history. Nullification would not have the racist reputation it does today if Calhoun had not been simultaneously the preeminent advocate of both nullification and slavery by the 1830s.
It is also unfortunate that nullification has been linked with secession in a chain of events leading to a Civil War begun by elite southerners in defense of slavery. Truly, the principle of states' rights has suffered grievously at the hands of its professed friends over the years. By their loud but opportunistic use of states' rights as a tool to advance their economic and racial interests, generations of slaveowners and segregationists inadvertently tainted the concept in the minds of those without the same interests--namely, fair-minded Americans who did not champion white supremacy or despise on the basis of skin color. Jim Crow did a real disservice to states' rights.
While Hubert Humphrey was a lifelong advocate of a leviathan state at the federal level, even many who lacked his enthusiasm for centralized political power agreed with his famous speech at the 1948 Democratic National Convention: "There are those who say, this issue of civil rights is an infringement on states' rights. The time has arrived for the Democratic party to get out of the shadow of states' rights and walk forthrightly into the bright sunshine of human rights." His implication was that states' rights are incompatible with human rights. It's not true, but it was believable to many Americans of good will--North and South, Republican and Democratic--who had been conditioned by bigoted, selective use of the phrase states' rights. The Tenth Amendment itself had become suspect for those who sincerely believed in liberty and justice for all. A true tragedy and very un-Jeffersonian development. This may have been the doing of heirs of the aristocratic, slavery-glorifying Calhoun, but it cannot be laid at the feet of Jefferson, who publicly acknowledged that slavery was immoral and that all men are created equal and endowed by their Creator with certain unalienable rights.
The current interest in nullification is more Jeffersonian than Calhounian. Calhoun has few devotees beyond a small base of political theorists who admire his Disquisition and southerners who are nostalgic for the CSA. Given his dislike of democracy and equality, it is doubtful that Calhoun would think highly of the unwashed masses who comprise the Palin- or Paul-lovin' Tea Party movement. New Hampshire's Tenth Amendment bill that was voted down 150-216 by the Democratic-controlled state house last year was based on Jefferson's Kentucky Resolution, not on anything written by Calhoun.
Today, nullification is popular. In February, a Rasmussen Reports national survey revealed that 59 percent of likely voters say that states should have the right to opt out of federal programs. Only 25 percent disagreed. When Americans were previously asked about the right to opt out of the national health care plan, however, only 47 percent agreed and 40 percent disagreed. Still a plurality, though. Only 14 percent agree with the right of secession, with 72 percent saying states do not have this right. That's still three out of every twenty Americans, which is more than you might expect. A January survey by Rasmussen revealed that 65 percent of voters hold populist views of government and 70 percent believe that big government and big business typically work together in ways that hurt the common people. Scott Rasmussen commented, "The American people don't want to be governed from the left, the right or the center. The American people want to govern themselves."
Of course, when the masses begin to raise a noisy objection to the status quo, the powerful and privileged will react. Harvard Law School professor Laurence Tribe and Princeton historian Sean Wilentz appear to provide elite analysis. (It's ashame in Wilentz's case. As a Bob Dylan enthusiast, he ought to know better. Populism and localism are valuable parts of the American tradition, embodied by Dylan, among others.) Tribe, in the Obama '08 camp, and Wilentz, in the Clinton '08 camp, represent the Democratic half of the establishment. Concerning state sovereignty proclamations, Tribe pontificates, "The claims of these resolutions are indefensible on constitutional grounds. They rest on completely untenable interpretations of the Constitution's text, structure and history, and they proceed as though the Civil War had been won by the Confederacy. These resolutions--not to put too fine a point on it--are off the wall." Yes, that is a legal phrase from the erudite scholar: "off the wall" (rendered defero parietis by Blackstone). And it is good to learn that the Tenth Amendment was defeated on the battlefields in the 1860s.
Wilentz's nullification article in The New Republic is entitled "States of Anarchy." (In his dread of anarchy, the professor has more in common with Calhoun than he realizes.) Wilentz's essay is accompanied by a picture of Calhoun, who makes a more convenient bogeyman than Jefferson. Jefferson, a favorite of many liberals, is not pictured, presumably because his role in nullification is minimized to the point of near-disappearance. His contribution is breezily summed up in a sentence or two, while Calhoun gets entire paragraphs. We are told that Jefferson and Madison were "in a panic," so they wrote their resolutions. In a fit of impulsivity, Jefferson's emotions got the better of him.
In reality, Jefferson never regretted his involvement and he viewed it as a central event of his life. In February 1826, when asking the state legislature to allow him to settle his debts through a private lottery, Jefferson reminisced. Concerning his services to the nation, he referred to "the most important in its consequences, of any transaction in any portion of my life; to wit, the head I personally made against the federal principles and proceedings, during the administration of Mr. Adams." He mentioned the Federalists' "usurpations and violations of the Constitution at that period" and concluded, "By holding on, we obtained time for the legislature to come up with their weight; and those of Virginia and Kentucky particularly, . . . by their celebrated resolutions, saved the Constitution at its last gasp." That's the considered judgment of the man who was "in a panic." Maybe it wasn't a passing fancy after all.
Wilentz's opening paragraph surveys the terrain: "The idea was broached most vociferously in defense of the slave South by John C. Calhoun in the 1820s and '30s, extended by the Confederate secessionists in the 1850s and '60s, then forcefully reclaimed by militant segregationists in the 1950s and '60s." Nothing about cotton or tariffs. Certainly nothing about abolitionists of the free North in defense of runaway slaves. Nary a trace of marijuana alleviating chemotherapy-induced nausea. Nullification is all about race hatred, which makes it so much easier for the refined set to dismiss it with a sniff and a tut tut. What if it were more complex than that? What if history is more nuanced? What if a tool can be used for good or bad?
Unfortunately, even those more genuinely on the Left are not immune from a simplistic understanding of history. In the May 16-31 print issue of CounterPunch, Kevin Alexander Gray observes, "Many of the present-day Tea Partiers share the 'states' rights' philosophy with neo-Confederates." Many also share Christianity with neo-Confederates. Does that make Christianity inherently bad? They also share American citizenship. I don't find the guilt-by-association argument helpful. Why not point out that many Tea Partiers share the states' rights philosophy with heirs of the anarchistic abolitionists?
In his last paragraph, quoting MLK, Gray takes a gratuitous slap at states' rights: "The fight to protect white privilege goes on. We have to fight back by keeping them honest about the history of our republic. In a modern context, we have to continue the fight against '. . . interposition and nullification. . .'" It's an unfortunate ending to an interesting article. I share with Gray an admiration for John Brown and the abolitionists, but I can't go along with his wholesale rejection of the Tenth Amendment. When faced with a slavery-embracing U.S. government, the abolitionists themselves found refuge in the powers reserved to the states. That's part of our republic's honest history.
Fortunately, there are some progressive counter-examples. I've already noted the Greens' embrace of decentralization. West German Greens in the 1980s opposed reunification of Germany partly for this reason. The rejection of federal law by marijuana enthusiasts has also been mentioned. In her Editor's Cut blog, Katrina vanden Heuvel of The Nation recently wrote an even-handed survey of states' rights, observing that the term "is not necessarily a badly veiled euphemism for institutional racism," but rather a legitimate principle of participatory democracy. The Nation is not usually known for its affection for political decentralization, but perhaps vanden Heuvel was somehow inspired by longtime magazine owner and editor Oswald Garrison Villard, grandson of anarchistic abolitionist William Lloyd Garrison. Although he disagrees with many of their positions, Ralph Nader has praised the civic engagement of grassroots conservatives by saying, "At least the Tea Party folks have a pulse."
In the 1860s, two of my ancestors fought for the Union. Joseph E. Crowder (Missouri Inf., Co. G, 8th Reg.) and Samuel Silvers (Iowa Inf., Co. E, 37th Reg.). Yet I see no reason to spit on the graves of Confederate soldiers. While I condemn the white southern leadership of their day, I am not in a position to sit in judgment on the motives of the individuals who wore the gray. To scapegoat them, and deride the descendants who honor them, is just as absurd as taunting mourners at funerals for American soldiers who die in Iraq and Afghanistan. The architects of such wars are wicked, which makes the wars themselves immoral and unjust. But you don't assign most of the blame to someone who is "only a pawn in their game" (to quote a phrase from Dylan's song about the killer of Medgar Evers). I'm content to know that that God will assign culpability on an individual basis.
For those of us born and bred in the North, it may give us self-righteous satisfaction to think that bigotry is the essence of what it means to be a white southerner and racial prejudice is confined to or primarily found in the South. It's not true. At times white supremacy has been more overt in the South, but the region has never held a monopoly and has never been defined solely by this trait. Race-baiting--whether black or white--is not helpful. If emotionalism and fear-mongering are bad on FOX News, they're equally bad when they're found among progressives.
For the past two years, I've lived in the Deep South. In Alabama. My town is Jacksonville, named after the populist who faced down Calhoun. My county is Calhoun. It was originally named after Old Hickory's right-man in the Senate, Thomas Hart Benton of Missouri. When Old Bullion, a slaveowner, turned against slavery as a matter of conscience by the 1850s, Benton County was renamed Calhoun County. It was a mistake symbolic of a larger, more grievous mistake. How much better for all concerned it would have been had the citizens sided with the Bentons instead of the Calhouns.
I appreciate many aspects of Southern culture--white, black, and shared--but my views on bringing government down to the level closest to the people themselves were formed long before crossing the Mason-Dixon Line. It's not a hot topic even in the Heart of Dixie. In my state, people are a lot more interested in college football than states' rights. Auburn vs. Alabama, not Federal vs. Confederate. I occasionally see the CSA battle flag, but orange and crimson football paraphernalia are ubiquitous. Gray Roll Tide elephants outnumber gray Johnny Reb depictions. This is not a seething cauldron of race hatred and fear. Most folks are polite to one another, most try to follow the Golden Rule, and many say "Yes, ma'am" and "No, sir" to all, without regard to skin color. Are there social separations and underlying tensions? Yes, but no more so than in other parts of the country. And here we compensate for those weaknesses by actually having a rich African American culture, while liberals in far-less-diverse places prattle on about the need for diversity.
I don't apologize for the South, which had a Jeffersonian inclination long before slavery became a national issue and which retains widespread populism even as it suffers under a tradition of elitism. Still, it's not southern culture which inspires my desire for decentralism. My understanding of the virtues of grassroots democracy and the vices of bureaucratic centralization were shaped in the 1970s and '80s by reading and listening to progressives like Jefferson, Orwell, and Dylan. Larry Norman, Roger Waters, and Patrick McGoohan. Leo Tolstoy, William Jennings Bryan, and Mohandas Gandhi. Mikhail Bakunin, Alexander Berkman, and Rudolf Rocker. Dwight Macdonald, C. Wright Mills, and Dorothy Day. Jacques Ellul, Noam Chomsky, and Andrea Dworkin. André Gorz, Murray Bookchin, and Janet Biehl. Rudolf Bahro, Charlene Spretnak, and John Rensenbrink. George Woodcock, Julius Jacobson, and Michael Albert.
Our Generation, New Politics, Z Magazine, and Green Party publications were especially important as I looked for an alternative to both monopoly capitalism and authoritarian socialism. When it comes to supporting power devolution, I've been inspired by populist Democrats, kingdom Christians, anarcho-pacifists, libertarian socialists, radical feminists, and deep ecologists.
I'm also too much of an admirer of Douglass, Garrison, and Phillips, of King, Malcolm, and Hamer, of Cornel West, Susan Taylor, and Alice Walker, to ever be a neo-Confederate. The good news is, You don't have to be nostalgic for a lost cause rooted in white sloth and black slavery in order to support nullification and state sovereignty. You don't have to romanticize inhumanity or excuse evil. You can be a neo-Abolitionist. In fact, it makes more sense to approach the subject from that perspective, given its Jeffersonian origins. At its best, it's about liberty not slavery, about peace not prejudice.
Next time you hear the word nullification, think Underground Railroad. Or war resistance. Or legalized pot. Or "Down with Big Brother."
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