Posted by: danielfee | March 22, 2013

Civil War 2.0: Round Two – The Nullifiers

Round Two – The Nullifiers

The Constitution was officially ratified in 1788, when New Hampshire became the 9th state to ratify it, thereby putting the new Constitution in effect in all of the original thirteen states. Following ratification, anti-federalism went into a lull but never really went away. There remained a strong undercurrent, particularly in the south, that was suspicious of a centralized federal government that was initially being run by the Federalist party. There were many who believed the Federalists wanted to return to a monarchical form of government. This sentiment was shared by Thomas Jefferson and James Madison who were the founders of the Democratic-Republican party in opposition to the Federalist party. However, it would be incorrect to believe that Jefferson and Madison were opposed to a strong centralized federal government; they just believed that it should be run in a more democratic manner.

The first power given to Congress in the new Constitution in Article I, Section 8 reads as follows:

“The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States”

Giving this broad taxing power to the federal government was one of the major objections by the anti-federalists to the Constitution, however they were in the minority. Soon after ratification, Alexander Hamilton, the first U.S. Treasury secretary, prepared his Report on the Public Credit for Congress. In it, Hamilton argued for a national financial system in which the central government would fund the national debt, assume the state debts from the Revolutionary War and establish a national bank. The money to operate the federal government would be raised by tariffs on imports and excise taxes on distilled spirits. Although Hamilton’s plan was controversial and the federal assumption of the state debts was initially voted down by Congress, it was eventually approved after Hamilton and Jefferson struck a deal.

In 1816, what is considered to be the first protective tariff was adopted and supported throughout the nation, including by South Carolina. But after the country experienced its first depression in 1819, which lingered into the 1820’s, some radicals in South Carolina began to blame the 1816 protectionist tariffs for their economic problems. But just forty years after South Carolina ratified the Constitution on May 23, 1788, it began to split internally over the issue of tariffs. By the time the Tariff of 1928, derisively known as the “Tariff of Abomination” by its detractors, was enacted and signed by President John Quincy Adams, the internal politics of South Carolina had split into two groups: the conservatives were known as the unionists, and the radicals were known as the nullifiers. The radicals, who were the successors of the anti-federalists and the Tea Party of their day, began to develop the “states’ rights doctrine” based on their own interpretation of the Constitution. For the philosophical underpinning of their “states’ rights doctrine”, they reached back to the Kentucky Resolutions and the Virginia Resolutions written by Thomas Jefferson and James Madison, respectively. These resolutions were prepared in opposition to the Alien and Sedition Acts which were signed by President John Adams. Jefferson believed these two acts were unconstitutional and suggested “nullification of the act is the rightful remedy”. This argument ultimately became the justification for the adoption of South Carolina’s Nullification Ordinance of 1833.

Senator John C. Calhoun of South Carolina, in a report he prepared on the tariff situation which was called “Exposition and Protest”, he argued that the Tariff of 1828 was unconstitutional because it favored manufacturing over commerce and agriculture. He believed the tariff power provided in the Constitution could only be used to generate revenue, not to provide protection from foreign competition for American industries. In his Fort Hill Address, published in 1831, he repeated and expanded on his position and went on to argue that he believed that the people of a state or several states, acting in a democratically elected convention, had the retained power to veto any act of the federal government which they deemed violated the Constitution. The right of states to veto federal law was the core of the nullification doctrine.

However from the beginning, the nullification rationale was flawed. As drafted by Jefferson, the Kentucky Resolutions contained the following statement,

“… that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy”

but as they were adopted, the Kentucky Resolutions went on to state,

“That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact:

AND FINALLY, in order that no pretexts or arguments may be drawn from a supposed acquiescence on the part of this commonwealth in the constitutionality of those laws, and be thereby used as precedents for similar future violations of federal compact; this commonwealth does now enter against them, its SOLEMN PROTEST.”

It is quite obvious that the State of Kentucky was issuing their opinion of the unconstitutionality of the law while at the same time saying they “will bow to the laws of the Union.” There is no honest way to interpret this as a resolution which seeks to void a Federal law. To emphasize this point, it closes in all capital letters stating that the resolution is a “SOLEMN PROTEST.”

Madison’s opinion as the author of the Virginia Resolutions is even more clear. When he was chairman of a committee of the Virginia Legislature, which issued a report on the resolution in 1800 just two years after adoption, he asserted that the state did not claim legal force saying,

“The declarations in such cases are expressions of opinion, unaccompanied by other effect than what they may produce upon opinion, by exciting reflection. The opinions of the judiciary, on the other hand, are carried into immediate effect by force.”

When Jefferson and Madison drafted the Kentucky and Virginia resolutions, it was prior to the Marbury v. Madison decision issued by the Supreme Court in 1803 which established the basis for judicial review on the constitutionality of issues and helped define the separation of powers between the three branches of government. Jefferson as President strongly objected to the Supreme Court’s decision stating:

You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”

Despite Jefferson’s objection, by the time that Calhoun first began making his nullification argument in 1828, the concept of judicial review was firmly established. Therefore if enough of the states collectively agreed in their opinion on the unconstitutionality of a Federal law, there were several methods by which they might overturn them, from persuading Congress to repeal the unconstitutional law to filing a lawsuit in federal court to have it overturned by the Supreme Court or by calling a constitutional convention which two-thirds of the states may do if agreed upon. However, a unilateral declaration that a federal law nullified and void within just their state is not one of the remedies.

Despite the fact these remedies were available, and probably because he knew none of these options would achieve his desired result, Calhoun set out to rationalize South Carolina’s justification for ignoring federal law. After stating their beliefs with respect to the establishment of the federal government, which echoed the prior anti-federalists arguments, and stating their beliefs as to what they thought was constitutional, they got to their main objection in the last reason they provided,

“Finally, because South Carolina from her climate, situation, and peculiar institutions, is, and must ever continue to be, wholly dependent upon agriculture and commerce, not only for her prosperity, but for her very existence as a state – because the valuable products of her soil – the blessings by which Divine Providence seems to have designed to compensate for the great disadvantage under which she suffers in other respects – are among the very few that can be cultivated with any profit by slave labor – and if by the loss of her foreign commerce, these products should be confined to an inadequate market, the fate of this fertile state would be poverty, and utter desolation: her citizens in despair would emigrate to more fortunate regions, and the whole frame of the constitution of her civil polity, be impaired and deranged if not dissolved entirely.”

But clearly Article I, Section 8 of the Constitution which South Carolina had ratified, gives the Congress the power to “regulate commerce with foreign nations and among the several states.” There is no doubt that the Tariff of 1828 favored domestic producers and markets and hurt those who relied on exports, but it was clearly within the authority of Congress. Whether it was good or bad policy is a different issue. However, it should also be remembered what was occurring throughout the 1820’s with respect to slavery as new states were being admitted to the union. It was becoming clear that as the country expanded westward that there would be more non-slave states, and the slave states in the south would lose the political advantage they had under the “three-fifths” clause in Article I, Section 2. At its core, Calhoun’s nullification argument was a defense of the institution of slavery and it would ultimately lay the groundwork for the start of the Civil War, which also began in South Carolina.

The nullification crisis escalated in 1832 following the South Carolina state elections, in which the nullifiers won majority. The Governor then called the legislature into a special session to consider a convention. In November 1832 the Nullification Convention was held. However prior to the convention, the Congress passed the Tariff of 1832, which was intended to address the southerners complaints regarding the Tariff of 1828. For most of the country, the reduced tariff was acceptable, however it was still deemed unsatisfactory to those in South Carolina. At the Nullification Convention they adopted the Ordinance of Nullification, which declared that the tariffs of 1828 and 1832 were unconstitutional and unenforceable within South Carolina effective February 1, 1833. The governor then established a state infantry and mounted minutemen militia to prepare for a potential military conflict with the federal government. In 1833 Congress moved to deescalate the conflict by passing the Tariff of 1833, which further reduced the tariffs, and passing the Force Bill which made it clear that the President was authorized to use whatever force was necessary to enforce federal tariffs. The South Carolina Nullification Convention was reconvened in March 1833 and they repealed their Ordinance of Nullification.

As historian Sean Wilentz observed, “a peculiar temporary, top-down populism would emerge during the nullification crisis, mobilized by the nullifiers in defense of localist oligarchy against “enslavement” by the federal government.” It might have seemed to be a temporary phenomenon when Mr. Wilentz published his book The Rise of American Democracy: Jefferson to Lincoln in 2005. But just a few short years later, in 2009, this top-down populism would come roaring back to life with the birth of the Tea Party movement. Although the Tea Party likes to claim they are a ground-up grassroots movement, there is plenty of evidence that there is big money (oligarchs) behind them. In fact, the chairman of FreedomWorks, Dick Armey, recently quit his job and received an $8 million dollar severance package. How many legitimate grassroots organizations do you know that have $8 million to give to a guy that just quit?

What is clear is that old anti-federalist and nullification sentiments had resurfaced in those who were unhappy with the outcome of the 2008 election. Although they may have harbored some of those feelings during the George W. Bush years, from January 2001 to January 2009, as the country’s budget surplus was squandered and turned into a huge deficit and civil liberties were being eroded with the passage of the Patriot Act, establishment of the TSA, the Department of Homeland Security, warrantless wire tapping, and numerous other infringements on Constitutional rights, they remained silent. That was until a new Democratic President was sworn in and began to address the economic collapse of 2008, known as the “Great Recession”, at which point the cries of a tyrannical federal government and the old states’ rights arguments began to resurface. I will address this in more detail in Round Five – The Tea Party. But before we get there we need to discuss Round Three – The Civil War in the next post.

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Responses

  1. Thanks for your excellent efforts on this!


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