Browsing the blog archivesfor the day Wednesday, December 1st, 2010.

The Next Nullification Crisis

American History

At today’s TPM:

Incoming House Majority Leader Eric Cantor is part of a class of Republicans who say they want to change the country fundamentally — and to that end, Cantor isn’t dismissing a plan by legislators in his home state of Virgina to blow up the Constitutional system and replace it with one that would give state governments veto power over federal laws.

For several weeks now, conservative legal circles have been buzzing with Virginia House Speaker Bill Howell’s plan to amend the Constitution so that a 2/3 vote of the states could overturn overturn any federal law passed by the Congress and signed by the President.

The problem of individual states objecting to federal laws has come up time and time again in U.S. history. Here’s a quickie review:

In 1781 the United States officially began as a confederation of sovereign states, but it was soon apparent that a confederation was unworkable and left much of the country in chaos.

So the original U.S. confederation was scrapped, and in 1789 the government was re-booted under our current Constitution. This provided for a much stronger federal government and reserved for the states some autonomy that the feds couldn’t supersede. And ever since, Americans have squabbled over exactly where the line between state and federal powers should be drawn.

Although much of the squabbling has been framed as disagreement over political philosophy, in truth the horse pulling the philosophical cart often is money. For example, a federal embargo act passed in 1807 was thought by Massachusetts to be a threat to its economy, and the state legislature flirted with the idea of secession. In the early years of our republic, New England states complained that the federal government was too much dominated by Virginia plantation owners who didn’t appreciate New England’s problems. Along with the grumbling, there was more talk of secession and lots of heated town hall meetings.

But later, it was the South’s turn to complain. A tariff act of 1828 that benefited economic interests in some states was considered ruinous by South Carolina, which voted to “nullify” the act within its borders. President Andrew Jackson declared,

I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed.

After much chest-thumping on all sides, in 1832 Congress authorized the president to take military action against South Carolina. However, Congress came to a compromise over tariffs before the troops actually began to march. This relieved the crisis but left the arguments about state nullification of federal law unresolved.

Many of the arguments used by the South Carolina nullifiers were recycled in 1860 to support secession of the slave states. The Declaration of Causes documents drawn up by secession conventions made it plain that these states were seceding to protect what they saw as the foundation of their economic interests — the institution of slavery.

The Southern plantation class, which ran the southern states like feudal lords, worried that if more “free soil” states came into the Union they would eventually be able to pass a constitutional amendment to abolish slavery. Several events of the 1850s made the slaveowners feel feel they were losing power in Washington, and the election of Abraham Lincoln, who ran on a “free soil” platform, was the last straw.

Ironically, to justify secession the slaveowners spewed out much rhetoric about their love of liberty and the tyranny of a federal power that might make them free their slaves. I’ll come back to this in a bit.

So, a Civil War was fought. The Confederacy went into the war with a number of advantages, the biggest of which was that it didn’t have to defeat the North militarily to win its severance from the Union. It only had to make itself a big enough nuisance for a long enough time that northern citizens would grow tired of the fight and concede. The North, on the other hand, would have to crush the South to win its compliance.

The South was crushed, however, and historians today cite two major reasons:

  • The North had more people and a big advantage in manufacturing capability.
  • The South was hampered by its “states’ rights” philosophy. With fewer resources, the Confederacy needed the full cooperation of every state to use what it had for maximum effect. Instead, several state governors refused to comply with Richmond’s requests for supplies and weapons, and they hoarded much-needed resources in arsenals and warehouses while the Army of Northern Virginia fought half-starved and barefoot.

The Confederate Constitution provided for a weaker federal government and a much diminished office of the presidency, and Jefferson Davis had less authority than did Abraham Lincoln to coordinate the war effort and make the most effective use of the resources at hand. In other words, “states rights” made the Confederacy vulnerable.

Of course, it didn’t hurt the Union that Lincoln was not only brilliant but was possibly the shrewdest politician who ever lived in the White House. But the main point is that once again, we see that a confederation of sovereign states has a big disadvantage over the federalized system provided by the Constitution.

Since the Civil War, “states rights” arguments have been most often associated with the “right” of states to deny equal rights to its citizens. Beginning in the early 20th century the federal government also has taken on a larger role in all manner of economic processes — product and workplace safety regulations, for example — and “states rights” arguments often are trotted out in opposition.

With no exception I can think of, the states rights issue pits the insular interests of the wealthy and privileged against the common economic good of the nation. And, of course, it also pits the “right” of local potentates to run roughshod over others against the protection of the civil liberties of United States citizens.

So today, in the spirit of the old southern secessionists who fought for the freedom to enslave people, Eric Cantor and his ilk have a plan to protect the Constitution by weakening the Union. Brilliant.

And Cantor is being supported by a movement of privileged citizens working on behalf of the narrow interests of the wealthy, in the name of liberty and patriotism. I swear, you can’t make this up.

But what this shows us is that it is in the interests of local authoritarians and powerful special interests to keep the federal government as fragmented and weak as possible. Weakening the federal government makes it so much easier to exploit and oppress the rubes, you know. I’m surprised no one on the Right has suggested bringing back indentured servitude, the 13th Amendment notwithstanding, although one could argue that the payday loan industry is creating a class of de facto indentured servants who can never work off their debt.

Now, it’s possible for these roles to be reversed. The federal government could become the power that limits individual civil liberties, and state and local authorities could become a bulwark against federal tyranny, but throughout United States history it’s usually been the other way around. You’d think people would have noticed this.

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