The merits of South Carolina’s constitutional argument are not our concern here. It could have been submitted to the arbitrament of the states as a whole, and the controversy decided there. There was no reason for a U.S. president to threaten the use of military force against his own people—the kind of thing Americans are taught to condemn when carried out by foreign regimes but to excuse and even celebrate as if it were something categorically different when done by their own.
So far we have seen nullification and the Principles of ’98 employed on behalf of numerous causes, among them freedom of speech, free trade, state control of the militia, and opposition to conscription. We have also seen that the major architects of the idea were not supporters of slavery. The average American knows little to none of this. Should he hear the idea of nullification, he would likely suspect—borrowing from the comic-book version of American history he was doubtless forced to endure in junior high school—that it must have been nothing but a sinister means of defending slavery. Isn’t that, after all, the only reason someone might support political decentralization?
This is one reason it is important to remember how the northern states employed the Principles of ’98 in opposition to the return of runaway slaves. Now it is true that the Constitution (Article IV, Section 2) contains a fugitive-slave clause (made irrelevant when the Thirteenth Amendment was adopted): “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” Thus it was argued that the northern states were misusing the Principles of ’98, since the fugitive slave laws to which they objected were in fact authorized by the Constitution. On the other hand, the clause does not mean that absolutely any measures designed for the purpose of capturing runaway slaves would be constitutionally acceptable, and the Fugitive Slave Act of 1850 was in fact open to constitutional objection.32 The lack of a proper jury trial for accused fugitives seemed to some states to conflict with their obligation to protect their citizens against kidnapping. Bystanders could be forced to assist in the capture of a fugitive, and stiff penalties were imposed for anyone who harbored or tried to obstruct the capture of a fugitive. On a more technical note, the Constitution requires judicial officers to be paid by fixed salaries, but the fugitive-slave commissioners were paid by fees. And not just any fees: such commissioners received ten dollars if they returned an accused fugitive to slavery, and only five if they set him free!
In northern states, nullification took the form of doing everything officials could to make enforcement of the act difficult if not impossible. State officials who lent their support to a fugitive-slave claimant were penalized and even impeached. Federal officials were not allowed to use local jails to house accused fugitives. Slaveholders coming to claim their slaves were required to go before federal fugitive-slave tribunals rather than simply snatching their slaves and absconding with them.
In a speech delivered in 1909, historian Robert Wild challenged his audience at the Wisconsin Bar Association to consider that those states (including Wisconsin itself) that chose to interfere with or resist the enforcement of the Fugitive Slave Act had in fact been nullifiers:
There are gentlemen still in our own midst, some within the sound of my voice, who lived through and even participated in that great humanitarian movement, and I stand in their presence with reverence upon my lips and affection in my heart. But, I ask, speaking calmly from the standpoint of my unemotional text, did their acts differ in principle from those of the South Carolinians, save only in degree? Were they not also, purely and simply, nullifiers, acting, to be sure, in the spirit of a broad and sweet humanity, yet nullifiers none the less?33
One of the most vivid examples of a state’s determination not to enforce a measure it considered constitutionally dubious involved Wisconsin, and a man named Joshua Glover. The story began in March 1854. Glover had been taken into custody by a federal marshal seeking to enforce the Fugitive Slave Act of 1850, on the grounds that Glover was himself a runaway slave. Sherman Booth, a local anti-slavery newspaper editor, frantically distributed handbills urging people to convene in the courthouse square to ensure the accused fugitive was not removed without a jury trial. With time running short, Booth ultimately abandoned the handbills and simply rode his horse throughout Milwaukee’s business district, stopping at street corners to shout, “A man’s liberty is at stake!”34
Several speakers addressed the mob that gathered before the jail in which Glover was being held. It was Booth in particular who roused the crowd into action. After he spoke, they forced their way into the jail and released Joshua Glover.
Not unexpectedly, Booth was arrested and brought before a federal district court. When he applied for a writ of habeas corpus, a judge of the Wisconsin State Supreme Court ordered him released. The state supreme court declared the Fugitive Slave Act to be unconstitutional and therefore void.
Before long Booth was arrested again, by the same federal marshal. This time he was found guilty of violating the Fugitive Slave Act, and imprisoned and fined. But once again he was released on order of the state supreme court.
Because the state supreme court was completely uncooperative in submitting a proper record of the case to the U.S. Supreme Court, no further action was taken until March 1857, when the U.S. Attorney was at last able to get a copy of that record. Finally, in December 1858, the U.S. Supreme Court ordered Booth turned over to federal custody. The state supreme court refused to comply.
In 1859, the Wisconsin legislature, heartily approving of its state supreme court’s conduct, adopted a resolution in support of the Principles of ’98. The U.S. Supreme Court’s action, the legislature declared, was “without authority, void, and of no force.” Its full statement, as anyone can see, was deeply indebted to the Kentucky Resolutions of 1798:
Resolved, That the government formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
Resolved, that the principle and construction contended for by the party which now rules in the councils of the nation, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism, since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers; that the several States which formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infractions; and that a positive defiance of those sovereignties, of all unauthorized acts done or attempted to be done under color of that instrument, is the rightful remedy.35
The Virginia and Kentucky Resolutions and the Principles of ’98 had in fact been appealed to all along in the Glover/Booth controversy, and not just in the Wisconsin legislature’s 1859 statement. Several weeks after the capture of Glover, a handbill announced the establishment of the “Anti-Slave-Catchers’ Mass Convention,” which appealed to the defense of state sovereignty against federal usurpations:
All the People of this State, who are opposed to being made SLAVES or SLAVE-CATCHERS, and to having the Free Soil of Wisconsin made the hunting-ground for Human Kidnappers, and all who are willing to unite in a STATE LEAGUE, to defend our State Sovereignty, our State Courts, and our State and National Constitutions, against the flagrant usurpations of U.S. Judges, Commissioners, and Marshals, and their Attorneys; and to maintain inviolate those great Constitutional Safeguards of Freedom—the WRIT OF HABEAS CORPUS and the RIGHT OF TRIAL BY JURY—as old and sacred as Constitutional Liberty itself; and all who are willing to sustain the cause of those who are prosecuted, and to be prosecuted in Wisconsin, by the agents and executors of the Kidnapping Act of 185
0, for the alleged crime of rescuing a human being from the hands of kidnappers, and restoring him to himself and to Freedom, are invited to meet at YOUNGS’ HALL, IN THIS CITY, THURSDAY, APRIL 13TH, at 11 o’clock A.M., to counsel together, and take such action as the exigencies of the times, and the cause of imperiled Liberty demand.36
Byron Paine, a knowledgeable abolitionist respected for his oratory by friend and foe alike, argued before the Wisconsin Supreme Court that “the great point of the controversy upon this subject is whether the Federal Government is the exclusive judge of its own powers, or whether the States have not also the right to judge upon that matter.” He declared that the federal government, having been created by the states to perform certain limited functions, could not reach beyond its expressly delegated powers; this principle, he said, was “not denied in theory by any one.” He referred again and again to the Virginia and Kentucky Resolutions and to Madison’s Report of 1800. Abram Smith and Edward Whiton, two justices of the Wisconsin Supreme Court, cited Jefferson, Madison, and the right of state interposition. Justice Smith contended that “the real danger to the union” came not from nullification, but “in acquiescence in measures which violate the Constitution.”37
This history may be all very impressive, but everything changed after 1865, right? Weren’t the states forced into a subordinate position? Of course not. The nature of sovereignty will not permit such a thing. In 1869, a year after the Fourteenth Amendment was adopted, even the Supreme Court reaffirmed the “expressly delegated” principle in the case of Lane County v. Oregon:
Both the states and the United States existed before the Constitution. The people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government [i.e., the government under the Articles of Confederation], which acted with powers, greatly restricted, only upon the states. But in many articles of the Constitution the necessary existence of the States, and, within their proper spheres, the independent authority of the States, is distinctly recognized. To them nearly the whole charge of interior regulation is committed or left; to them and to the people all powers not expressly delegated to the national government are reserved. The general condition was well stated by Mr. Madison in the Federalist, thus: “The Federal and State governments are in fact different agents and trustees of the people, constituted with different powers and designated for different purposes.”38
Still, it is very common in current discussions of nullification to hear critics say the Civil War “settled” the issue. Now for one thing, the Civil War had nothing to do with nullification, though the southern secession was indeed based upon the (correct) compact theory of the Union, to be discussed in the next chapter. In fact, many supporters of nullification, including the now-reviled Calhoun, supported nullification precisely in order to preserve the Union against secessionists who would sever it. But even if nullification had been at stake, what moral significance can we attach to the statement that war “settled” the issue? If I say the sky is blue and you say it is brown and green, and then you throw a brick at my head, does that make the sky brown and green? Would a parent tell his bloodied son that his unfortunate fate at the hands of the school bully proved the poor kid must have been wrong? Would we not consider it unspeakably grotesque and morally outrageous to declare that the U.S. Army “settled” the issue of the Plains Indians?39
The merits of the constitutional arguments advanced by the states we have studied in this chapter, although interesting in themselves, are not what concern us. What is important is the history itself, the brute fact that the states once did resist the federal government when they believed it had gone beyond its legitimate powers. This is not a newfangled idea that emerged in the twenty-first century out of opposition to George W. Bush or Barack Obama. It is a regular feature of American history, employed for honorable purposes from the earliest days of the republic.
CHAPTER 4
What Is (or Are) the United States, Anyway?
WHAT WAS THE UNITED STATES SUPPOSED TO BE, ANYWAY? That may sound like an odd question. It is, in fact, the most important question of all. The history of state resistance we reviewed in chapter three, as well as the idea of nullification itself, are based on a particular understanding of the nature of the Union that the Constitution brought into existence. Was the United States created by a group of independent political societies that established a federal government as their agent, reserving all undelegated powers to themselves? Or was the United States the creation of a single, undifferentiated American people? That may sound like a distinction without a difference to those new to the subject, but it amounts to perhaps the most significant controversy in early American history—and perhaps in all of American history. Was the United States intended to be just another run-of-the-mill centralized polity, of the kind that would appear with a vengeance in the nineteenth century, or did the Framers of the Constitution have something less formulaic in mind?
What most American children learn when they study American history in school is what might be called the nationalist theory of the Union, which was expounded by the likes of Daniel Webster and jurist Joseph Story, the latter of whom composed the influential Commentaries on the Constitution of the United States (1833). There was no systematic nationalist theory until Story’s Commentaries.1 This version of American history and constitutionalism conceives of the United States as deriving from a single sovereign people rather than from an agreement among states and the various peoples thereof. In this view, the United States is just another modern unitary state, in which a monopolistic central authority is the source of all power, and any lesser bodies (in this case, the states) derive their own powers and privileges from this central authority.
What we hear much less about, and what our law students do not learn about at all, is the alternative and far more historically plausible compact theory of the Union, set forth by the likes of Thomas Jefferson, John Taylor, St. George Tucker, Spencer Roane, Abel Upshur, John C. Calhoun, Littleton Waller Tazewell, and others. Hardly anyone reads Judge Abel P. Upshur’s book, A Brief Enquiry into the True Nature and Character of Our Federal Government (1840), a point-by-point refutation of Justice Story’s Commentaries that is at least as serious a work as the one it opposes. The compact theory, which Upshur sought to uphold against the nationalist version put forth by Story, held that the United States had been formed when the peoples of each of the thirteen states, each acting in its sovereign capacity, ratified the Constitution in the months and years following its drafting in 1787. (The very fact that the states voted separately to ratify the Constitution, and that the Constitution was not ratified by a single, consolidated vote of all individuals in the original thirteen states, is an important piece of evidence to compact theorists that the states, rather than some single American people, created the federal Union.) They delegated to that government a small number of enumerated powers, reserving the remainder to themselves. As we have seen, Thomas Jefferson and others further proposed that the states may refuse to enforce a federal law that exceeded the powers they had delegated to the central government. According to the compact theory, therefore, the United States consists not of a single, aggregated people, but of particular peoples, organized into distinct states.
For compact theorists, therefore, nullification amounts to the legitimate exercise of sovereignty by sovereign bodies in defense of their liberties against a federal government that was supposed to be the agent, not the master, of the states.2 The nationalist view, by contrast, would condemn nullification as illegal and possibly treasonous. We leave to the student as an exercise to determine where the true spirit of treason was to be found: in the states that upheld the Constitution by resisting unconstitutional encroachments, or in politicians who imposed unconstitutional measures on the people.
The nationalist view denies that the states established the federal government or that the United States is a l
eague or compact among states. The ratification of the Constitution by state holds no significance for the nature of the Union, according to this view. Ratification was an act not of the states but of the whole people, who alone are sovereign even if they happen to have expressed that sovereignty through the intermediary of state conventions. State resistance to federal power, according to this reading of the American tradition, can be conceived of only as insubordination. The states are essentially helpless to defend themselves against the federal government, and must instead depend for the maintenance of their liberties on such notoriously unreliable mechanisms as national elections—as if elections alone could prevent unjust or wicked federal legislation—or the Supreme Court.
Proponents of the nationalist view attempt to undermine the political and historical integrity of the states by suggesting that the peoples of the American colonies (the precursors of the states) had already become amalgamated into a single people before the Declaration of Independence was signed, and thus well before the Constitution was ratified. According to the nationalist view, as early as the colonial period we see a single people being forged out of the various British North American settlements. From this alleged “single people” the nationalists derive the idea that the American Union itself was the creation of a “single people” instead of what it obviously was: the creation of the various peoples of the several states.
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