A New Challenge to Federal Authority?

Sean Wilentz is a contributing editor to The New Republic, and the author of The Rise of American Democracy: Jefferson to Lincoln (Norton).

Historical amnesia is as dangerously disorienting for a nation as for an individual. So it is with the current wave of enthusiasm for "states' rights," "interposition," and "nullification"-the claim that state legislatures or special state conventions or referendums have the legitimate power to declare federal laws null and void within their own state borders.

The idea was broached most vociferously in defense of the slave South by John C. Calhoun in the 1820s and 1830s, extended by the Confederate secessionists in the 1850s and 1860s, then forcefully reclaimed by militant segregationists in the 1950s and 1960s. Each time it reared its head, it was crushed as an assault on democratic government and the nation itself-in Abraham Lincoln's words, "the essence of anarchy."

The issue has been decided time and again-not least by the deaths of more than 618,000 Americans on Civil War battlefields. Yet there are those who now seek to reopen this wound in the name of resisting federal legislation on issues ranging from gun control to health care reform. Proclaiming themselves heralds of liberty and freedom, the new nullifiers would have us repudiate the sacrifices of American history-and subvert the constitutional pillars of American nationhood.

The origins of nullification date back to the stormy early decades of the republic. In 1798, a conservative Federalist Congress, fearing the rise of a political opposition headed by Thomas Jefferson, passed the Alien and Sedition Acts outlawing criticism of the federal government. Coming before the Supreme Court had assumed powers of judicial review, the laws, signed by President John Adams, were steps toward eradicating political dissent. In a panic, Jefferson and his ally James Madison wrote sets of resolutions duly passed by the legislatures of Virginia and Kentucky, which called upon the state governments to resist and, as Madison put it, "interpose" themselves between the federal government and the citizenry. But the other state legislatures either ignored or repudiated the resolutions as affronts to the Constitution, and the crisis was ended by the democratic means of an election when Jefferson won the presidency two years later-the wholly peaceable and constitutional "revolution of 1800."

The concept was revived by John C. Calhoun, who expanded it into a theory of nullification and Southern states' rights in 1828. The specific issue at stake was a protective tariff that Southerners believed unfair to their section, but behind it lay a growing fear that the federal government might interfere with the institution of slavery. Calhoun declared that as "irresponsible power is inconsistent with liberty," individual states had the right to nullify laws they deemed unconstitutional. He asserted further that should the federal government try to suppress nullification, individual states had the right to secede from the Union.

In 1832, the South Carolina legislature passed a formal ordinance nullifying the tariff. But President Andrew Jackson proclaimed nullification pernicious nonsense. The nation, Jackson proclaimed, was not created by sovereign state governments-then, as now, a basic misunderstanding propagated by pro-nullifiers. Ratified in order "to form a more perfect union," the Constitution was a new framework for a nation that already existed under the Articles of Confederation. "The Constitution of the United States," Jackson declared, created "a government, not a league."

Although state governments had certain powers reserved to them, these did not include voiding laws duly enacted by the people's representatives in Congress and the president. Calhoun and South Carolina were isolated by Jackson's firm stand. The aging James Madison sided with the president, deploring "the strange doctrines and misconceptions" of the South Carolinians, charging that they were a perversion of the Virginia Resolutions, and insisting that the "Constitution & laws of the U. S. should be the supreme law of the Land." (Madison also wrote of nullification that "[n]o man's creed was more opposed to such an inversion of the Repubn. order of things" than Thomas Jefferson's.) Other southern states refused to join in the nullification movement, and the Congress approved a compromise tariff bill.

Calhoun's radical ideas about states' rights resurfaced during the sectional crisis over slavery in the 1850s. The Civil War began as a struggle over democracy and American government, focused on a key question: could the slave power in individual states, dissatisfied with the outcome of a presidential election, declare that election null and void and secede from the Union? Lincoln, like Jackson before him, declared such extreme views of state sovereignty a direct attack on democratic republican government.