State's Rights: Nullification, secession, race and interstate commerce

Maximizing happiness pursuits via state sovereignty in the age of Obama


It is one of the great tragedies of American history that one of the key components in the brilliant governing structure erected by the framers of the Constitution got so inextricable and nearly exclusively identified with race.

I speak, of course, of the concept of federalism and state’s rights. The brilliance of this concept was in its de facto subjection of states to market forces and allowance of non-market eccentricities deemed more valued than the attraction of more settlers/citizens. It maximized happiness pursuits by allowing the like-minded to congregate in close proximity and enact laws reflecting their own values.

So powerful was the market for new settlers, that by 1840 no state imposed a state religion, despite their right to do so. Thomas Jefferson himself, never deigned to mis-apply the Establishment Clause to the states via Congress nor the courts. Yet, his religious freedom law of Virginia ended up winning the day in all states without the assistance of an oligarchical (Jefferson’s term) judiciary imposing its will on the nation.

Sadly, but probably inevitably, federalism couldn’t prevent the bloodbath that was the War between the States. A future President Abraham Lincoln famously declared that the American house would not stand divided free from slave, and with a Southern section so completely dependent economically on involuntary servitude and business interests in the Northern section so dependent on exploiting that southern dependence, a gradual, non-divisive unification on the issue of slavery was simply beyond ability of human beings even within the brilliant federal edifice.

The deaths of half a million Blue and Gray was the first step in discrediting state’s rights in the public mind, with Jim Crow, separate but equal de jure race discrimination and the growth of the regulation of interstate commerce being the second and third steps, about which we will return later.

But there had already been a New England flirtation with secession, about which the Constitution was silent, as well as the John C. Calhoun-led 1828 Nullification movement and first South Carolina secession threat 28 years before the firing on Fort Sumter.

What is significant about the above for our present purposes is its relation to current movement of state declaration’s Ninth and Tenth Amendment sovereignty. The most significant iterations of this movement have been the Secessionist throwaway line by the Governor of the Lone Star State and the Big Sky state’s brilliantly constructed guns in, by and for the borders of Montana only law.

First, let us deal with this issue of whether a state may “legally” secede from the Union and the so-called “Lincoln” precedent. The U.S. Constitution is silent on the issue but advocates for and against the right of a state to separate itself from the Union existed since at least as early as Thomas Jefferson’s pronouncements in the wake of U.S. Supreme Court rulings he deemed to be oligarchical usurpation’s of the powers of the executive and legislative branches and the right of self government.

But it was all quite theoretical until SC’s 1833 Ordinance of Nullification, which amounted to a refusal to pay tariff duties that were quite punitive to the Southern states. Punitive tariffs were also part and parcel of the post-Lincoln election secessions in 1860-1, inextricably tied to slavery and the South’s fear that a President Lincoln’s refusal to admit any more slave states from the western territories would put the institution on an inevitable path to elimination that would render monied interests in Dixie gone with the wind.

And while I think the non-judicial Lincoln precedent is quite instructive on the issue of secession, Calhoun’s nemesis on the issue better defined the matter for our purposes today.

President Andrew Jackson (pictured), also a native South Carolinian and Jeffersonian advocate for state’s rights, nevertheless was second to none in his belief in the Union.

Calhoun, previously a Unionist, had resigned the Vice-Presidency to lead an overreaching Nullification movement after a change of heart. I say overreaching, because Congress does have the explicit, enumerated power to regulate interstate commerce.

President Jackson declared that state nullification of a constitutional law passed by Congress to be treason and that secession was, by definition, to be impossible:

The most important among these objects [replacing the Articles of Confederation], that which is placed first in rank, on which all the others rest, is “to form a more perfect Union.” Now, is it possible that, even if there were no express provision giving supremacy to the Constitution and laws of the United States over those of the States, it can be conceived that an Instrument made for the purpose of “forming; a more perfect Union” than that of the confederation, could be so constructed by the assembled wisdom of our country as to substitute for that confederation a form of government, dependent for its existence on the local interest, the party spirit of a State, or of a prevailing faction in a State? Every man, of plain, unsophisticated understanding, who hears the question, will give such an answer as will preserve the Union. Metaphysical subtlety, in pursuit of an impracticable theory, could alone have devised one that is calculated to destroy it.

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.

Jackson declared that “To say that any state may at pleasure secede from the Union is to say that the United States are not a nation.” He prepared to send troops to South Carolina and have Calhoun hanged, but actually resolved the crisis by compromising on the tariff law.

Texas governor Rick Perry did not actually threaten nullification or secession over tea this past April 15, but he did sign a state sovereignty bill and allude to the Republic of Texas’ entry into the Union and suggested that the particulars allowed Texas unique rights to secede. I think Perry is wrong if he thinks that given that acts of Congress are required for entry, I doubt any state would be allowed exit absent acts of Congress.

But the most significant aspect of Perry, Montana and other states engaged in the sovereignty movement is their avoidance of the mistakes of Nullification overreach, so far.

I think the only way this movement fully blossoms to reign in a century old diminution of the Ninth and Tenth are if states begin to refuse to accept federal dollars and the inherent strings attached.

Also important will be the recognition of the limitations of the Ninth and Tenth given the expansion of properly defined interstate commerce and court rulings that presently improperly expand it. But even if properly defined, the parameters of intrastate commerce are quite confined. The fact is that we depend on interstate trade from most good and services we use.

But on non-economic issues, the power of states should be quite plenary, which is why I had so hoped that Alabama’s governor had refused to allow federal marshalls to remove Judge Roy Moore’s Ten Commandments courthouse decoration from a state building. That would have forced President George W. Bush to make a very stark choice between accepting the fact that state’s don’t establish religions with art or treating the adornment as the equivalent of the murder of Medgar Evers.

What I find quite ironic about the present state’s rights movement is that it occurs with the nation having forever proven its redemption on the issue of race which had come to de-legitimize the federalism and separated powers concept that has been one of the keys to our growth, strength and longevity as compared with all other nations on Earth.

Mike DeVine’s Charlotte Observer and Minority Report columns

“One man with courage makes a majority.” – Andrew Jackson

Originally published @ Examiner.com, where all for verification links may be accessed.