Ignoring central government will not make it go awayby Diane Roberts / June 19, 2013 / Leave a comment
Published in July 2013 issue of Prospect Magazine
William Hague, the Foreign Secretary, recently told an Anglo-German conference that if national parliaments don’t like a Brussels diktat they should be able to show the “red card” to the European Union. I wonder if he knows that US states have been trying to kick Washington out of the game for nearly 230 years. In April, the Kansas legislature passed the “Second Amendment Protection Act,” contending Kansans could manufacture and sell all the guns they like, and own as many Kansas-made guns they want—even semi-automatic weapons—without being subject to any federal licensing rules or laws. If some agent from the DC Bureau of Alcohol, Tobacco and Firearms comes to Kansas and tries to enforce US law on “Made in Kansas” guns, he or she will be charged with a felony and could face prison time.
Missouri, Alaska, Mississippi and 34 other states have passed similar laws. Florida and Illinois have banned federal drones over their territories (just in case), Texas wants to ignore the federal Clean Air Act, while Arizona and Alabama mean to run their own immigration policy in direct conflict with the national enforcement agency. Despite the US Supreme Court’s decision upholding the constitutionality of “Obamacare,” South Carolina, and a passel of other conservative-run states, want to reject it as a violation of their “sovereignty.”
The historical term for defiance of central government by state governments is nullification, though perhaps we should call the 21st century iteration neo-nullification. The theory, as articulated by Senator John C Calhoun in the 1820s, asserts “the right of a State to interpose, in the last resort, in order to arrest an unconstitutional act of the General Government.” Of course, it depends on what “unconstitutional” means and who gets to decide. In 1828, Congress passed a tariff act aimed at protecting the industrialising north from cheap imported goods. Southern states protested that it hurt their profits, since the British had less money to buy their cotton. Though the tariff was softened in 1832 under President Andrew Jackson, Calhoun, his vice-president, resigned. Calhoun’s home state of South Carolina passed the Ordinance of Nullification, declared the tariffs unconstitutional, and called up militias to defend against federal troops.
The nation, a mere 50 years old, was about to fall apart. In the end, the administration agreed to a new tariff bill, more favourable to the plantation economy of the south, and the crisis faded—at least until 1860, when avowed enemy-of-slavery Abraham Lincoln was elected president, and South Carolina made good on its threat to secede from the union. Ten other states followed, igniting the bloodiest conflict in American history.
The Civil War was supposed to settle, once and for all, America’s biggest constitutional (and existential) questions: could a nation whose founding documents proclaimed the “self-evident” truth that we are created equal and free tolerate the ownership of human beings by other human beings? Was each state sovereign, a de facto nation, as the Confederacy claimed, or was the federal government pre-eminent?
Southern states were still denying the children and grandchildren of slaves the right to vote more than 100 years after General Lee surrendered at Appomattox in 1865, more than 100 years after the 13th Amendment, the one outlawing slavery, was ratified. While Congress and the courts keep reminding states that the “supremacy clause” in Article Six of the US Constitution says that federal statutes—the Voting Rights Act of 1965, say, or the Patient Protection and Affordable Care Act of 2010—outrank state law, unreconstructed states’ rights types and Tea Partiers insist that their interpretation of the Constitution gives them license to, well, invent a country that doesn’t exist, one in which each state picks and chooses the laws it will follow and ignores the judiciary altogether.
The neo-nullification tendency profess to revere the Constitution, but I see little evidence that they’ve actually read it. Tennessee state Senator Mae Beavers says Washington has no right to regulate firearms. Moreover, the US Supreme Court is a “dictatorship.” She told the Tennessee Grand Assembly: “You think that the Supreme Court is the ultimate arbiter of any of these laws. I don’t believe that. I don’t believe it was ever granted the authority under the Constitution.”
Beavers might want to cast an eye on Article Three of the Constitution, the one that explicitly grants the Supreme Court the power to do exactly what she thinks it can’t. Perhaps she is confusing the Constitution with the earlier Articles of Confederation, a “league of friendship” intended to organize the 13 colonies against British rule. The 1777 version envisions a loose arrangement of self-governing states, which sounds much more like the EU dreamt of by the current Tory government than the US federal system as it actually exists. In 1789, the Articles of Confederation were replaced by the Constitution—the one (duly amended to pursue radical ends such as allowing women to vote and guaranteeing equal protection under the law) we operate under today.
At a Jefferson Day dinner in 1830, President Jackson raised his glass to “Our federal union, it must be preserved!” Calhoun replied with his own toast: “The union, next to our liberty, the most dear!” America is, as it has always been, in dynamic tension between federal rule and states’ rights, but unless the neo-nullifiers actually want to enter into open rebellion against their own government, they must accept that they are subject to its laws.