Unpacking States Rights

John C. Calhoun

One often hears that nineteenth century Americans believed in states rights. With these two words we answer a multitude of questions: What policy position characterized white Southern opinion in the antebellum era? States rights. Why did white Southerners object to bans on slavery in the territories? States rights. Why did white Southern states secede in 1860-1? States rights. Why did white Southerners fight the Union? States rights. Uttering the two words absolves one from any obligation to further inquiry. States rights simply constitute an end unto themselves. They slice; they dice; they explain all American history for however many payments of $19.95.

One can find nineteenth century Americans making all of those claims and if one settles for a superficial reading, then they suffice. Looking at them in light of their authors, their times, their circumstances, and the broader history of the nation tells a rather different story. Only the rights to institute, expand, and defend slavery excited much interest in the antebellum South. Attempts to exercise state sovereignty against the federal government otherwise garnered this answer:

The States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the Acts of Congress or render useless any attempt to execute them. In many of these States the fugitive is discharged from service or labor claimed, and in none of them has the State Government complied with the stipulation made in the Constitution. The State of New Jersey, at an early day, passed a law in conformity with her constitutional obligation; but the current of anti-slavery feeling has led her more recently to enact laws which render inoperative the remedies provided by her own law and by the laws of Congress. In the State of New York even the right of transit for a slave has been denied by her tribunals; and the States of Ohio and Iowa have refused to surrender to justice fugitives charged with murder, and with inciting servile insurrection in the State of Virginia.

Thus, South Carolina declared the ends of the Union frustrated and its obligations therefore void. The Carolina secessionists pointed to the Constitution, chapter and verse. The free states had undertaken obligations that yielded their sovereignty to the Union on the matter of slaves who dared steal lives from their rightful owners. One can’t argue otherwise, as the Constitution says so right here:

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.

Thomas Jefferson

The free states dared nullify federal law. They did so not in some vague or ambiguous area, but where the Constitution explicitly denied them any such power just as it stripped from the states the power to set tariff rates. By breaking faith with their constitutional promises, in this and other matters, the free states had dishonored themselves and forced South Carolina from the Union.

One could go on with this hypocrisy. It would take an arduous search to find an invocation of states rights free from it, if one exists at all. Northern states did claim they had rights to nullify this law or that, most famously Wisconsin when it nullified the Fugitive Slave Act, but they also asserted that they lacked the any such power. Arthur Schlesinger, Sr. recounted many such examples in his essay The States Rights Fetish. Nearly a century has come and gone since he wrote and that makes his history downright antique. One should read it with considerable caution. But that said, I don’t think one can argue with the facts he cites.

Beginning with the wellspring of states rights rhetoric, the Kentucky and Virginia Resolutions of 1798-9, Schlesinger points out that Jefferson and Madison drew them up as works of political protest. The Federalists in Congress had trampled what we would call civil liberties with the Alien and Sedition Acts. This trampling applied rather selectively to people of Jefferson’s and Madison’s political party. From New England, where the Federalists had control of the legislatures, condemnations rained down. The Constitution vested the power to judge a statute’s constitutionality in the federal courts, not the state houses. That we might agree with Jefferson that the Federalists had gone so far should not blind us to the partisan concern.

Then Jefferson’s party gained control of the government in 1800. Jefferson’s and Madison’s policies harmed the New England shipping industry. The New England legislatures then discovered that they did, in fact, have the power to judge the constitutionality of federal laws:

In February, 1809, the Massachusetts legislature resolved that the embargo measures were, “in many respects, unjust, oppressive and unconstitutional, and not legally binding on the citizens of this state,” though the citizens were counselled “to abstain from forcible resistance, and to apply for their remedy in a peaceable manner to the laws of the commonwealth.” The Connecticut legislature resolved in a similar spirit that it would not “assist or concur in giving effect to the … unconstitutional act, passed to enforce the Embargo.”

The War of 1812 brought the notion that state militias should come into federal service, under the command of federal officers. Connecticut put on its best South Carolina act in response, declaring

the state of Connecticut is a FREE SOVEREIGN and INDEPENDENT state; that the United States are a confederacy of states; that we are a confederated and not a consolidated republic

James Madison

The issue of the Bank of the United States brought such talk to Pennsylvania and back down to Virginia. Who took the other side?

The federal government found an outspoken friend in South Carolina and a somewhat unexpected defender in Massachusetts. In resolutions of 1821 and 1822 both states asserted the full right of Congress to enact laws establishing a national bank with branches in the several states, and Massachusetts, with an odor of self-righteousness, explicitly championed the right of the United States Supreme Court to settle all questions involving the constitutionality of legislation.

The same South Carolina would discover that states had the right to nullify federal laws after all, aiming the power at the tariff. With all of this talk about sovereign states and nullification, one would assume that other states rushed to the Palmetto State’s banner but

they sought in vain for friends and defenders where they had every right to expect them. In the first stages of the controversy, Ohio and Pennsylvania, both former expounders of the state rights position, expressed their belief that the tariff was entirely constitutional. Event hose states of the South which had earlier declared a belief in the unconstitutionality of the tariff system were not willing to follow the logic of South Carolina into nullification. […] Mississippi adding, with myopic vision into the future, “we stand firmly resolved … in all events and at every hazard, to sustain” the president in “preserving the integrity of the Union-that Union, whose value we will never stop to calculate-holding it, as our fathers held it, precious above all price.”

Easy enough to say with an enslaver in the White House.

Schlesinger goes on: Massachusetts condemned the annexation of Texas and resolved to ignore the resolution that carried it into force. Vermont, Ohio, and Connecticut agreed. Schlesinger then moves on to Wisconsin’s aforementioned nullification. Not taking the Supreme Court decision as binding, the state

resolved in 1859, on the verge of the war to preserve the Union, that the several states which had formed the federal compact, being “sovereign and independent,” had “the unquestionable right to judge of its infractions” and to resort to “positive defiance” of all unauthorized acts of the general government.

Andrew Jackson

What does all of this amount to? One can read the various proclamations as evidence of a robust antebellum conviction that the states had the rightful power to judge federal laws unconstitutional and nullify them on their own authority. States both North and South claimed it. But states of both sections, the same states often enough, also condemned it and declared it treasonous. It seems, to judge from consistent patterns of behavior rather than isolated rhetoric, states had the right only when and only to the extent that they lost the most recent round of elections and resolved not to accept that verdict nor to wait for their redress in the next canvass.

Stripping away the constitutional rhetoric and high theory, states rights boil down to just that. Even in the most generous reading, a consistent states rights sentiment would amount to the conviction that state governments have greater propensity to enact policies that one prefers than the federal government. Nothing about the state or federal governments makes one or the other inherently more virtuous. We can find in the past actions equally praiseworthy and horrifying from both. For every abolition of slavery and segregation, we have a Trail of Tears or Japanese-American Internment.

In this light, the regular changes in position on supposedly bedrock constitutionalism become entirely comprehensible. Whether Massachusetts in 1809 or South Carolina in 1860, the cry of states rights expresses no more than the partisanship of the losing party to an election. Its universality likewise comes as no surprise, given that everyone who prevails in an election requires another who did not.

The victims of the Birmingham Church Bombing

This brings one back around at length to one of the standard answers to neo-Confederates: states rights for what? Nobody wants any kind of abstract, unspecified states right or state sovereignty in itself. Rather one seeks them in order to achieve various ends which appear then impossible at the national level. Stripping all context from assertions of state power and rendered them into constitutional esoterica does nothing but impede our understanding of the past.

I suspect the authors of such arguments intend as much. By taking the politics out of political arguments, we hide from ourselves and others the information necessary to make informed judgments. So blinded, we inevitably come to the conclusion that past Americans simply had some kind of good faith dispute over the letter of the law which, thanks to some irresponsible actors, turned into a war. It would not do to pay attention to the main behind the curtain, whatever he does to his slaves. We must instead comment only the color of the drapes and the manly vigor he demonstrated in choosing it.

This policy or that, before the Civil War or after, violates states rights. Anti-lynching laws? States rights. Integration? States rights. Civil Rights? States rights. Obamacare? States rights. Same-sex marriage? States rights. If we can give it a name, we can invent some right of a state to block it. Curiously, the rights of the people never seem to get much airtime in these discussions.

Those who propose to argue for states rights as a good in themselves ask us to believe that they would change their position entirely if only a state did the work instead. In this fantasy, South Carolina would have abolished slavery in 1860, if only Lincoln had lost. The South would have integrated, but then the Supreme Court and Lyndon Baines Johnson made a federal case out of it.

Out in the real world, people do violence to others and their victims feel the pain and pay the cost more dearly than any rarefied constitutional doctrines. Whether malefactors draw pay from Washington or Lansing or Columbia, their prey suffer the same. Yet the latter-day speakers of the high-class rebel yell would have us always pay no mind to the man behind the curtain or to those he afflicts. We must say nothing about any of that, confining ourselves to commentary on the color of drapery he chose and the manly virtue he displayed in the choice.

Americans did not embrace states rights in the Secession Winter to defend themselves from tyranny. Winning an election does not make a tyrant any more than losing it does not make one virtuous. The white South flocked to the banner then to save themselves from the consequences that losing the election posed to the institution of slavery, going so far as to assail in their Dear John letters to the Union exercise of the very rights they simultaneously claimed. They did not rediscover their ancient faith in the late 1940s, but rather raised up the old banner in the name of white supremacy once again. By pretending otherwise we might make things more comfortable for ourselves, but in doing so we only outsource the costs to others and so make ourselves accessories to and accomplices in their deprivations, great and small.

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