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Today’s States’ Rights debate is in fact as old as the republic—and not yet as contentious as it got in the 1830s
October 1995 | Volume 46, Issue 6
In these fading months of 1995, the political revolt against Washington is still in full cry—and in Washington itself. The congressional drive to return control of many federal regulatory and social welfare programs to the states continues strongly, and my sense of history tells me that we may be in one of those periodically recurring and ever-shifting power struggles between advocates of “centralism” and “localism” that have marked our history ever since the original Federalists and anti-Federalists went at each other.
I admit to being surprised, however, at some of the more vehement manifestations of resistance to the current heavy structure of federal authority. I don’t simply mean the ardent souls who deny federal ownership of public lands, much less the psychopaths who talk of armed resistance. I am referring to the members of fifteen state legislatures that have, since 1994, passed resolutions reaffirming—some quite belligerently—the Tenth Amendment, which reserves to the states “the powers not delegated to the United States by the Constitution.” Innocuous as these resolutions may sound, they sidestep all the hard questions of two hundred years of experience. What are those powers? What do they mean in the 1990s rather than the 1790s? Who should interpret them? Are state rights the same as state sovereignty? Can such sovereignty be squared with “one nation out of many?”
One early case of acute States’ Rights fever was the so-called nullification crisis of 1832–33. The story—a very dramatic one—is worth retelling for the light it sheds on the complexities of the federal system, as well as for its tangy mixture of principle, greed, ambition, and avarice.
In its 1827 and 1828 sessions, Congress was debating upward revision of the tariff in force since the end of the War of 1812. The tariff had raised money for important national projects, such as a national road to the West, and it modestly protected the infant U.S. textile industry. In 1816 few South Carolinians had objected—certainly not John C. Calhoun, the vigorous national growth advocate, who became Vice President to John Quincy Adams in 1825. But the 1820s were not kind to South Carolina. Its plantation economy suffered from a depression, while prospering manufacturers began to ask for still more protection. In the election year of 1828 they got the attention of campaign managers of the candidate Andrew Jackson, and in the end they got their high tariff. Jackson won the White House, and Calhoun was again elected Vice President, but his position in the administration was now made ambiguous by his home state’s discontent.
Some Carolinians had begun to argue that Congress had stuck planters with a so-called Tariff of Abominations that raised their costs for manufactured goods and lowered foreign demand for their rice and cotton. Worse, the Constitution had been stretched out of shape for the purpose. Nowhere was Congress specifically authorized to levy a tariff. That was simply “implied” in the powers to raise revenue and regulate commerce through laws that were, in the elastic phrase, “necessary and proper” to those ends. As the strict construction critics saw it, this “protective” tariff was an outrageous forced transfer of wealth from one section to another.
Behind the revulsion against the tariff was another anxiety that troubled even Carolinians whose fortunes weren’t suffering in 1827. It was slavery. William Smith warned his fellow citizens that the flexible “general welfare” clause in the Constitution’s preamble, having already been used to tax them for the benefit of “manufacturers. … wallowing in wealth” would next allow the “Northern States” to “rend your government asunder, or make slaves your masters.”
Was there constitutional remedy? The tariff rebels thought so. The states—South Carolina included—had created the national government in 1787 and given their consent for it to act as their agent. What was given could also be taken away in whole or in part. Why not simply refuse to honor the presumptuous act of an overreaching agent without firing him—in short, simply “nullify” an unconstitutional exercise of power within South Carolina’s boundaries?
Not all Carolinians were convinced. A party of moderates argued that the Supreme Court was the proper place for deciding constitutional issues and that allowing each state in the Union to interpret the document for itself was a recipe for the kind i of anarchy that had I wrecked the Articles I of Confederation. The nullifiers called on Calhoun, South Carolina’s most visible and articulate statesman, to speak for them. He agreed with them, but because he still had presidential ambitions, he made his case anonymously, in a document called the South Carolina Exposition and Protest .
In it Calhoun deftly refined, recast, and actually limited the argument, using the contract theory underlying American constitutionalism. For their mutual safety and advantage, the sovereign people of each state “contracted” away some of their liberty to a central government—the agent that they created. To rebuke an act of that government that overstepped the limits of the “contract,” they would have to reassemble (through representatives) in a special convention just like the one that had ratified the Constitution—a body superior to any ordinary legislature—and invoke their sovereign right to the last word.
This kind of nullification, the Exposition argued, was unlikely to happen often. It would actually prevent secession, though that was a legitimate last resort. It even left the door open for South Carolina to go along if three-quarters of the states should amend the Constitution. It was, Calhoun insisted to his dying day, a means of preserving the Union as it should be, with all the member states treated fairly.
Reasonable as it sounded, South Carolina voters rejected the nullifiers in 1832 and elected a moderate majority to the state’s legislature, which printed the Exposition and Protest but did not call a nullification convention. The moderates’ hope was that Calhoun would use his influence in the administration to get the tariff lowered without a clash.
Instead things went terribly wrong. Calhoun and Jackson split on a variety of issues, of which Old Hickory’s flinty nationalism was only one. Their hardening enmity set up one of those great tableaux that adorned traditional history books: a Democratic-party dinner early in 1830 at which the President, called on for a toast, gazed straight at Calhoun and proposed: “Our Federal Union. It must and shall be preserved.” To which the Vice President retorted with unflinching lifted gaze: “The Union—next to our liberties most dear.”
By 1832 an isolated Calhoun watched helplessly as Jackson won re-election with a new Vice President, New York’s politically astute Martin Van Buren. Continued hard times and increased anxiety over slavery turned the South Carolina tide and swept the nullifiers to victory in state elections. Calhoun was now openly among them, having acknowledged his authorship of the Exposition and Protest and lamenting that pro-tariff nationalists were sacrificing the Union to a passion for riches. “I never suspected that a people could so sadly degenerate,” he declared.
The nullifiers were aflame, but so was Andrew Jackson, who said that nullification was “treason.”
The crisis broke in November 1832, when the special nullification convention was convoked and decreed that after the next February it should “not be lawful … to enforce payment to duties … within the limits of this state.” Any attempt by Congress to use military measures would result in secession. The nullifiers were aflame, but so was Andrew Jackson. In a January message to Congress he proclaimed that nullification was expressly contradicted by the letter and spirit of the Constitution, that “disunion by armed force” was “treason.” He called for legislation, known as the Force Bill, to let him use the Army and Navy, if necessary, to deal with the crisis. South Carolina’s legislature responded by giving Gov. Robert Hayne the authority to raise state troops, and some twenty-five thousand volunteers were soon drilling the winter away.
But behind the fist shaking on both sides there was some prudence. Early in February 1833 Sen. Henry Clay introduced a plan to slice protective duties in half over a ten-year span, reducing them finally to a level that could be considered “for revenue only.” Clay’s bill was promptly supported by none other than Sen. John C. Calhoun, who had left the Vice Presidency and had been elected to the Senate by the South Carolina legislature. The revised tariff passed both houses by March 1. The Force Bill—now more symbolic than likely to take effect—passed by big majorities within a week. Calhoun then rushed home to help talk moderation to the reconvened special convention, where extreme nullifiers still threatened secession over the mere threat of national coercion. A compromise finally prevailed. The convention rescinded the offending original ordinance—and then proceeded to “nullify” the Force Bill.
So principle was verbally upheld even as the armies marched back downhill. Jackson preserved the Union, and Calhoun could write to a friend that he had “no doubts the [tariff] system has got its death wound” and nullification had dealt “the fatal blow.” That’s the kind of resolution that I confess I like to see. But it was of course only a short-term outcome. In 1860–61 moderation lost and civil war came (followed by high tariffs).
Calhoun had gone to his grave in 1850, staunchly calling for the preservation of the Union by granting the South a veto over federal encroachments on its rights. In my graduate school days he was much admired as a farseeing defender of the claims of a permanent minority within the nation. But even then I simply couldn’t divorce his abstractions from their real-life pro-slavery context. So much depends on one’s initial prejudices. I wonder, for example, if Calhoun came back to life, what he would make of arguments much like his own advanced by African-American advocates like Lani Guinier.