Sean Wilentz: America's Long, Sordid Affair with Nullification
Historical amnesia is as dangerously disorienting for a nation as for an individual. So it is with the current wave of enthusiasm for “states’ rights,” “interposition,” and “nullification”—the claim that state legislatures or special state conventions or referendums have the legitimate power to declare federal laws null and void within their own state borders. The idea was broached most vociferously in defense of the slave South by John C. Calhoun in the 1820s and 1830s, extended by the Confederate secessionists in the 1850s and 1860s, then forcefully reclaimed by militant segregationists in the 1950s and 1960s. Each time it reared its head, it was crushed as an assault on democratic government and the nation itself—in Abraham Lincoln’s words, “the essence of anarchy.” The issue has been decided time and again—not least by the deaths of more than 618,000 Americans on Civil War battlefields. Yet there are those who now seek to reopen this wound in the name of resisting federal legislation on issues ranging from gun control to health care reform. Proclaiming themselves heralds of liberty and freedom, the new nullifiers would have us repudiate the sacrifices of American history—and subvert the constitutional pillars of American nationhood.
The origins of nullification date back to the stormy early decades of the republic. In 1798, a conservative Federalist Congress, fearing the rise of a political opposition headed by Thomas Jefferson, passed the Alien and Sedition Acts outlawing criticism of the federal government. Coming before the Supreme Court had assumed powers of judicial review, the laws, signed by President John Adams, were steps toward eradicating political dissent. In a panic, Jefferson and his ally James Madison wrote sets of resolutions duly passed by the legislatures of Virginia and Kentucky, which called upon the state governments to resist and, as Madison put it, “interpose” themselves between the federal government and the citizenry. But the other state legislatures either ignored or repudiated the resolutions as affronts to the Constitution, and the crisis was ended by the democratic means of an election when Jefferson won the presidency two years later—the wholly peaceable and constitutional “revolution of 1800.”
The concept was revived by John C. Calhoun, who expanded it into a theory of nullification and Southern states’ rights in 1828. The specific issue at stake was a protective tariff that Southerners believed unfair to their section, but behind it lay a growing fear that the federal government might interfere with the institution of slavery. Calhoun declared that as “irresponsible power is inconsistent with liberty,” individual states had the right to nullify laws they deemed unconstitutional. He asserted further that should the federal government try to suppress nullification, individual states had the right to secede from the Union. In 1832, the South Carolina legislature passed a formal ordinance nullifying the tariff. But President Andrew Jackson proclaimed nullification pernicious nonsense. The nation, Jackson proclaimed, was not created by sovereign state governments—then, as now, a basic misunderstanding propagated by pro-nullifiers. Ratified in order “to form a more perfect union,” the Constitution was a new framework for a nation that already existed under the Articles of Confederation. “The Constitution of the United States,” Jackson declared, created “a government, not a league.”...
After four years of Civil War, in a “new birth of freedom” that resurrected the Union, Calhoun’s states’ rights doctrines were utterly disgraced—but they did not disappear forever. Nearly a century later they were exhumed to justify the so-called “massive resistance” of the segregationist South against civil rights and, in particular, the Supreme Court’s ruling in Brown v. Board of Education in 1954. The current rage for nullification is nothing less than another restatement, in a different context, of musty neo-Confederate dogma....
That these ideas resurfaced 50 years ago, amid the turmoil of civil rights, was as harebrained as it was hateful. But it was comprehensible if only because interposition and nullification lay at the roots of the Civil War. Today, by contrast, the dismal history of these discredited ideas resides within the memories of all Americans who came of age in the 1950s and 1960s—and ought, on that account, to be part of the living legacy of the rest of the country. Only an astonishing historical amnesia can lend credence to such mendacity.