“The sacrifice of every abolitionist in the Territory.”

Robert S. Kelley

Robert S. Kelley

The Weston Argus reported on Samuel Jones’ shooting with a degree of restraint. They didn’t come out and say that proslavery men ought to go to Lawrence and murder the lot of damned abolitionists who shot the sheriff, or encouraged and protected those who did. The paper came close, but its piece in the Squatter Sovereign doesn’t quite cross that line. The editors issued the stereotypical mafiosi threat: nice town you’ve got there, shame if something happened to it. The Sovereign itself would have none of that. Robert S. Kelley probably still felt his cruel disappointment back in December. Probably all of us have suffered a disappointment or two like that.

Whether Kelley moped about his missed chance around the office until no one could stand him or not, his paper connected the dots that the Argus left implied. A small item at the bottom of the page notes

Had justice been awarded to Lawrence in December last, during the disturbances of that month, there would be no Fort there now to shield an army of traitors who are sworn to resist the laws.

Lawrence did not have a fort per se, but they had built Free State Hotel to do double duty as a nineteenth century pillbox. That might prove an obstacle to working bloody justice on those who “murdered” Samuel Jones, “than whom a braver man never lived.” The Sovereign’s own version of events, which I missed a few days ago, comes just a few columns over from the Argus’. John Stringfellow and Robert Kelley reminded their readers of Jones’ virtue and informed them that the free state men, “thieving-paupers of the North” had come to trample the rights of Southern men, stealing their property, and murdering them if they had half a chance. All of that aimed to break the Union.

The news had thrown Atchison, just recently visited by its namesake ex-senator, into quite the stir. Rumors flew about, which we know include word of Jones’ death. They may not have. A simple assault on Jones ought to have done the same work for their movement as his death, given past performance. Given he did get shot and things appeared close for a while, I see no reason to doubt their sincere belief that Jones had died of his wounds. The Sovereign roared

HIS DEATH MUST BE AVENGED. HIS MURDER SHALL BE AVENGED, if at the sacrifice of every abolitionist in the Territory. If the proslavery party will quietly set still and see our friends, one by one, murdered by these assassins, without raising their arms to protect them, we much mistake their character. Will they again allow a Northern Governor to cheat them out of their just revenge? We answer emphatically, NO! If the Governor of this Territory and the Administratin at Washington any longer attempts to force us to assume the position of outlaws, before we can have justice done us, the sooner such a contingency arises, the better.

John Stringfellow, Speaker of the House of Kansas

John Stringfellow

Outraged at resistance of the laws and an antislavery party that set themselves up in defiance of the territorial government and, perhaps, the nation, the proslavery party of Kansas avowed that they must do precisely the same. Should Wilson Shannon or Franklin Pierce get in the way, the Sovereign would count them enemies with the rest. The party who once damned their enemies as nullifiers now declared for nullification of their own, with all the customary agility that such contortions required.

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The Long Reach of American Fascism

I’ve written before that Donald Trump has a past. He has brought back to the forefront of American politics essentially open advocacy for white supremacy, after decades of white Americans pretending they didn’t have any real problem with black Americans. He has undone, at least for this moment, the work of Lee Atwater and his generation of PR men:

That distinction, and some others, do make the Trump campaign unique. We’ve known for decades that when fascism came to the United States it would come wrapped in the flag and carrying a cross. They didn’t tell us it would come in orange with a dodgy comb-over, but then fascists have a history of not living up to their own aesthetic standards; the rules apply to other people. Saying fascism would come also implies that we didn’t have it already. It appears, in fact, that Americans invented the ideology, attitude, aesthetic, or whatever thing one considers fascism best called. Before Mussolini’s train ran on time, the Ku Klux Klan crossed the finish line so early we didn’t have a name for it.

Just as we risk missing the forest for the tree in taking Trump as entirely sui generis, so we do the same in taking fascism in isolation. Fascist movements have never, so far as I know, come to power without cooperation from the mainstream right of their countries. That cooperation came come eagerly or with a general sense of disdain, but it does come. Never Trump never came to much. Nor will the ritual denunciations. We can’t know what goes on between an individual and their ballot, but even if all the famous people declaring they’ve changed parties follow through, they have shifted perhaps hundreds of votes. Had enough of them existed to stop Donald Trump from winning the nomination of the mainstream American conservative party, we would have seen it by now.

Trumpism, for all its thuggish bullying, open white supremacy, and admiration of street violence, has precious little but style to distinguish it from past runs for the presidency. I don’t need to dig back into the nineteenth century or root about in the dustbin of history for fringe candidates everybody has agreed, safely after the fact, to hate. If you want bellicose white supremacy in the vein of the murder victim getting what he had coming, take these remarks on the death of Martin Luther King, Jr.:

a great tragedy that began when we began compromising with law and order, and people started choosing which laws they’d break.

King, you must understand, brought this on himself. By breaking the law to protest segregation, he produced the violent backlash that claimed his life. He ought to have known his place. The author of that statement then occupied no more exalted an office than that of governor, but he would go on to greater things.

Philadelphia, Mississippi has two claims to national fame. In 1964, the Klan, with help from the county sheriff and local police, murdered three civil rights activists there. I imagine that one doesn’t go on the tourist brochures, but it happened all the same. The deaths of James Chaney, Andrew Goodwin, and Michael Schwermer helped push the Civil Rights Act of 1964 and the Voting Rights Act of 1965 through Congress. These laws abridged the power of state governments, particularly in the South, to behave abominably toward African-Americans.

Sixteen years later, a presidential campaign rolled into town. The candidate came fresh off his convention win, inaugurating his general election campaign in Philadelphia. I have no doubt that the people of Philadelphia, then and now, run the gamut just like people everywhere else. They deserve a presidential visit as much as anybody. But towns that even today boast only seven thousand or so people don’t have for national office candidates just drop by; I live in a town of ten thousand and we don’t get that. The campaign chose Philadelphia for a reason, and the man behind the podium made it clear just what they had in mind:

I believe in state’s rights.

I believe in people doing as much as they can for themselves at the community level and at the private level.

And I believe that we’ve distorted the balance of our government today by giving powers that were never intended in the constitution to that federal establishment.

And if I do get the job I’m looking for… (Cheers and applause)

I’m going to devote myself to trying to reorder those priorities and to restore to the states and local communities those functions which properly belong there.

You don’t give a speech like this in a place like Philadelphia by accident. You do it because you want everyone to know that state’s rights means white power. The speaker didn’t wear a white hood and chant about the Klan getting bigger, but he didn’t need to. When you go to Philadephia, Mississippi and tell the town that murdered civil rights workers and so convinced the nation to pass laws curbing state power to abridge civil rights that you believe in state’s rights, you tell them that you’ve taken their side. You are no partisan for the victims, nor their cause, but the declared ally of their murderers. If elected, you will do all in your power to roll back civil rights and restore white supremacy’s untrammeled rule to its most murderous extent.

The speaker in question? Revered conservative statesman Ronald Reagan. I don’t see many conservatives, or many white Americans in general, willing to denounce him.

The Ends of Constitutionalism

John C. Calhoun

John C. Calhoun

Gentle Readers, I’ve spent the last week thinking about constitutional theories. I’ve done so before, but they happen to have returned to the news through the continuing operations of a domestic terrorist organization. I wrote about them last week, though I don’t consider it my best effort. Consider this more inspired by than specifically about the ongoing seditious conspiracy.

In Prelude to the Civil War: The Nullification Controversy in South Carolina 1819-1836, William W. Freehling remarks that a debate concerning infrastructure projects, internal improvements in the parlance of the time, “most early-nineteenth-century disputes between nationalists and sectionalists, turned into an argument over the Constitution.” Given the tremendous prestige granted to the Constitution, it only stood to reason that any contending parties would find imprimatur for whatever policies they preferred within its text. If we judged from this point alone, we would have to consider our dating badly wrong. By no means could our years begin with any other digits than one and eight, in that order. Everyone, bar a few individuals more honest and historically informed than amenable to the ever-excessive, oft-violent cult of American patriotism, stands for the Constitution. In standing for the Constitution we name ourselves red, white, and blue saints contending against traitorous sinners.

I don’t use the religious language for effect. The frame of the argument neatly recapitulates tropes very popular in the rhetorical histories of various Christianities: Once, all agreed and lived together in paradise. The nude frolic could not last. We fell from grace and lived shackled to our sins. But now we have a chance at restoration, to come around to the right and live in conformance to the grand design. This could easily be the story of Martin Luther or Joseph Smith as the story of original intent and strict construction, the story of a proslavery Constitution or an emancipationist Constitution perverted to opposing ends. We could call any version true, so long as it comported with our values. If we wanted to really separate ourselves from the crowd, we might burden ourselves with inconvenient facts as well as the airy freight of rhetoric. Even if we do, Constitutional debates ultimately come down to what we want and how we think we can best achieve it.

This doesn’t necessarily render Constitutional considerations irrelevant, but it does mean that we cannot take them in isolation. People adopt the constitutionalisms they do for what they consider good, real world reasons rather than fuzzy abstractions. That doesn’t necessarily make constitutional theory insincere, but does mean that it follows and flows from policy preferences. If we take it at face value, a practice once popular among historians as well as the lay public, then very little of American history makes much sense. We mistake states’ rights for a cause, rather than a method. We have no explanation at all for how a diehard nationalist like John C. Calhoun became his generation’s most famous anti-nationalist. Going down this road leads one to thinking that slavery had little to do with the Civil War or any of the sectional crises before it, rather than serving as their indispensable driving force.

The ex-confederates and their latter-day admirers, many of whom must know better given the ink they spill trying to defend slavery, want just that from us all. If white supremacy remains taken for granted and invisible in American history, then it becomes that much easier to prosecute today. By removing African-Americans and their interests from history, we can deny that they have one except as objects acted upon by whites. With only the most superficial knowledge of how white supremacy operated and operates, we happily consign it to the past even as we continue it in the present. We had slavery, but we ended it. We had segregation, but we ended that too. Neither has any persistent effect, either on its own or in the form of attitudes and circumstances perpetuated despite de jure achievements.

One must truly sleep through life to miss that black Americans do not do as well as whites. Even if we don’t know the statistics, the brute facts confront us every day. The color of wealth, and the power and authority it brings, remains almost entirely white. Absent a robust understanding of both how white Americans have denied black Americans advancement, we must conclude not that injustice persists but rather that something about black Americans makes them, by their nature, inferior. We can call it culture, but this pretends that black culture exists utterly apart from white culture. It transforms black Americans into Martians, strange visitors fundamentally alien and incomprehensible save in that we can comprehend the supposedly existential threat they pose to us. They thus become a thing to battle, rather than fellow people with whom we have shared a country since before we called it a country.

If you don’t believe me, then consider this musical genre. Its performers hail chiefly from one identifiable racial group, speaking about their experiences both real and idealized. Its lyrics regularly glorify crime, including violent crime. If you watch the news often enough, you know I have just described rap and hip-hop. If you turn the radio to the right station, you will soon learn that I instead described country. Neither, with the exception of the occasional musical about a founding father and Johnny Cash, regularly graces my ears but the lyrics speak for themselves.

We invented race for that purpose, of course. We must keep to our traditions, lest we admit our own responsibility. In appreciating how fundamentally we built it into our system, it would take at least a minor miracle to have kept it clear of our constitutionalisms. Plenty of Americans, then and now, don’t even try to pretend otherwise. They deem civil rights legislation unconstitutional, a point on which the Supreme Court has chosen to concur. Programs that help the poor? As poverty in America comes with black skin, we find that unconstitutional as well. In the world of disinterested constitutionalism, these things just happen. They have their consequences, but we have the poor and wrongly-colored to bear those.

No one can hold the devoted constitutionalist responsible. They must follow the rules, the same as everyone else. Those rules come down to us themselves disinterested and thus inherently fair. We should know; we made them. How could we, white with innocence, do otherwise? All through our history we have the same distinguished record of pure principle. Such abstractions cleanse anything. We had no slavery; we had property rights.

This distinction, from time to time, brought petitioners to the Congress asking compensation for slave property lost or damaged in the course of wars. Such requests provoked considerable controversy. For many white Americans, asking the government to pay for lost slaves like it paid for lost cattle asked far too much. But for others, it asked only the absolute minimum. They had their rights, you understand. It had nothing to do with slavery, in that the Constitution protected all property alike, and everything to do with it in that slave property remained slave property. On these small issues, easily forgotten and deserving of future blog posts, the Congress could produce sectional alignments typical of the late Antebellum solid decades before and in the midst of eras where we do not usually understand slavery as a particularly divisive issue. Competing constitutionalisms then squared off, but they did not square off on their own terms. Both sides had preferred ends which their constitutional theories served.

We can pretend otherwise, but doing so doesn’t just turn hated minorities into aliens. It does the same for cherished national totems, rendering them inert, uninteresting paragons from whom we insist we must learn but from whom we have likewise stripped anything worth learning. We built such statues, out of marble or imagination, for devotion rather than education.

Unpacking Secession

The Charleston Mercury's extra announcing South Carolina's secession.

The Charleston Mercury’s extra announcing South Carolina’s secession.

It doesn’t take very long talking about the Civil War with people or reading about it online before one encounters the argument that the southern states had a right to secede. Thus we should not ask why secession took place, but rather why the rest of the nation objected and sought to suppress it. That question has value itself. We should ask it often and intently. It informs a great deal of recent scholarship about the war, in particular the continuing debate over to what extent, how, and when, northern whites understood themselves to fight the war to destroy slavery. The consensus holds that most came to emancipation only reluctantly, only after repeated defeats, and only as a measure necessary to win the war. But giving the question of why the rest of the nation fought the South its due attention should not distract us, as the bad faith debater wishes, from the more important fact that the South seceded to preserve slavery.

All that said, the supposed right of secession deserves some investigation in itself. In Disunion! The Coming of the American Civil War 1789-1859, Elizabeth Varon distinguishes secession from disunion. The latter carried overlapping meanings:

Disunion was invoked by Americans, across the political spectrum, in five registers: as a prophecy of national ruin, a threat of withdrawal from the federal compact, an accusation of treasonous plotting, a process of sectional alienation, and a program for regional independence.

We usually, laypeople and historian alike, call all of those secession. Varon thinks we do so wrongly. To her,

Secession referred to a specific mechanism whereby states could leave the Union, and it reflected complex constitutional theories on the boundaries of state and federal power.

Secession, in Varon’s usage, thus describes how one goes about enacting the program of disunion. For the purposes of this post, I intend to broaden the term just slightly to also include how secession’s advocates understood it. One need not go far to find references to succession in antebellum political works, which plays into the notion that everybody in antebellum America agreed that states had a right to secede. Richard Ellis makes this point in The Union At Risk, and points to an important shift in the constitutional thinking along the way:

Prior to the espousal of the doctrine by the South Carolina nullifiers, most assertions of secession had taken the form of rhetorical flourishes, political ploys, and logical extensions of arguments not fully understood or thought out. Moreover, secession before 1828-1833 was not a doctrine that was associated with a particular interest group or section of the country. A number of the more vociferous New England opponents of the War of 1812 had spoken of it, but the moderates who controlled the Hartford Convention rejected the doctrine, and the entire movement was soon disgraced and lost in the nationalist fervor that swept the country after 1815.

New Englanders also floated secession much less famously, and in fewer numbers, against Jefferson’s embargo. A simplistic reading of that would suggest a national consensus that one could secede, just as a similar reading would find a consensus on states’ rights, but note Ellis’ qualifications. Rhetoric, ploy, and arguments taken to their logical extreme do not a program make. Nor does it follow that if they did, they necessarily further amounted to the assertion of secession as a legal process to which a state had a conventional right. If secession did mean those things, then suppressing it should at the very least come only through a conflict between its exercise and other, similarly compelling rights. One can make a very good argument that in 1860-1 other rights did conflict with any such exercise, but unless one takes secession as the ultimate of all rights then such a conflict seems inherent and inevitable. We come back around to calling out the army and the familiar narrative of 1861-5.

This doesn’t render consideration of methods and understandings moot. Antebellum Americans could understand secession as a different kind of right which they understood themselves as entitled to and yet suppress its exercise by another without contradiction. Though that might seem like a stretch, it relied only upon acceptance of the logic of the American founding. The United States arose through an act of treason against the United Kingdom. The founders levied war against the legally constituted government of the land, precisely the act which they would later declare treason in the Constitution. They claimed as their justification the right of revolution, a decidedly unconventional right.

We understand ordinary rights as involving our ability to do something without interference. What we consider interference depends heavily upon our political convictions, usually with a distinction between a right to do something free from government obstruction against a right to engage in the act in and of itself. The right of revolution doesn’t fit easily into either construction. Those who revolt must expect opposition and at least very likely that they will settle the issue by a contest of arms. Thus one doesn’t have an unhindered right to rise up at will, but rather a right that exists only in retrospect. If you win your war, you have the right. Otherwise, you had the right to hang. In this light, we must consider revolution not as a right like speech where suppression in itself would violate expected norms, but rather one its lack would do so.

The understanding secession as not revolution, but rather an orderly constitutional process, came into American discourse through the innovations of the nullifiers. It did not achieve the status of an accepted dogma even in the South until after Nullification came and went, as one can see here (PDF):

The South, in my opinion, has been aggrieved by the acts of the North, as you say. I feel the aggression, and am willing to take every proper step for redress. It is the principle I contend for, not individual or private benefit. As an American citizen, I take great pride in my country, her prosperity and institutions, and would defend any State if her rights were invaded. But I can anticipate no greater calamity for the country than a dissolution of the Union. It would be an accumulation of all the evils we complain of, and I am willing to sacrifice everything but honor for its preservation. I hope, therefore, that all constitutional means will be exhausted before there is a resort to force. Secession is nothing but revolution.

Here we have an impressive collection of statements. The author deems the South an “aggrieved” victim of Yankee “aggression.” He wants redress. But he loathes the thought of disunion. He distinguishes between constitutional means of the redress he hopes for and secession, which he calls revolution. He doesn’t leave matters there, though. He further writes:

The framers of our Constitution never exhausted so much labor, wisdom, and forbearance in its formation, and surrounded it with so many guards and securities, if it was intended to be broken by every member of the Confederacy at will. It was intended for “perpetual union,” so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution, or the consent of all the people in convention assembled.

That, if not the earlier statements about the South’s suffering, sounds like something Lincoln would say. Robert E. Lee wrote it all to his son in late January, 1861. One can argue that Lee doesn’t make for much of a constitutional thinker. Whatever their abilities, military men have other priorities. Nor does his embrace of the Confederacy later on involve a clear contradiction. Lee would have noticed his fighting the war and in doing so he acted consistently with his understanding of secession as revolution.

Robert E. Lee, Virginia aristocrat, military officer, and future confederate general

Robert E. Lee

At least rhetorically, however, many secessionists did claim they had a legal process. Some might have believed it. During the Secession Winter, they did rather more than make the traditional threats. They employed a method along the general lines that Calhoun laid down in Nullification times. The states, through special conventions, had ratified the Constitution. To Calhoun, this meant that a state convention exercised ultimate sovereignty and could thus un-ratify the Constitution. The Union consisted only and entirely of the Constitution, legally speaking, so by exercising its sovereignty in this way, a state could take itself out of the Union. Other thinkers held that states could do this through ordinary legislation, but Calhoun’s state convention method generally prevailed. Calhoun only had to ignore where the Constitution located sovereignty to manage all this. One can’t blame him for missing it, though. Who reads the first sentence of a document?

Secessionists also differed, even in South Carolina, over whether they should secede unilaterally or not. Many held that secession would come more easily and more defensibly from a convention of the southern states acting in concert. Opponents damned them as secret unionists, pointing to the failure of the Nashville Convention to achieve secession a decade prior. Why would one adopt a method known to fail, unless one wanted the effort to fail too? Some might have done just that, but as a practical matter even while considering unilateral secession South Carolina’s leadership took a very keen interest in what other states planned to do. They had gone out on a limb before and learned that the rest of the South would not follow. That didn’t quite make the first secession a cooperative affair in the mode that the advocates of it wanted, with the whole South going out together, but they both expected and had some informal assurances that other states would follow.

John C. Calhoun

John C. Calhoun

All the secession methods suggested in the antebellum agreed on one point: secession must proceed unilaterally in another way. A state had the power, either through revolution or constitutional process, to secede on its own. The consent of other states or the national government did not enter into it. They might engage in consultation. It might make for better politics for states to go out in a group. But when a state wanted to go, it had gone. This would always invoke the familiar storm of controversy. However, an uncontroversial process for secession exists in principle: the Constitution allows for amendments. If a state could secure the passage of an amendment authorizing secession, either for itself alone or for states in general, that would almost certainly meet constitutional muster. (The Reconstruction Amendments offer a clear case where the text of the Constitution did not, but such direct and obvious counterexamples don’t come up very often.) Somewhat more remotely, states could convene to write an entirely new constitution which would permit secession. Those legal roads exist, but the advocates of secession never seem very interested in them. Rather they want to leave, take the real estate with them, and demand that everyone else smile and wave as they depart.

Two Books on Nullification

Gentle Readers, you may have guessed from the recent run of Modern Mondays that I’ve gone off on a bit of a nullification kick. Sectional strife did not just erupt full-formed over the annexation of Texas or the Wilmot Proviso, but rather had a pedigree extending considerably farther back. At a certain point, one arrives at crises resolved in ways that don’t seem to have pushed the nation closer to war, but which rather subsided into a more latent kind of sectionalism. For example, prior to 1854 southern radicals could complain about the Missouri Compromise but few expected it overturned. The serious controversy over Missouri’s admission to the Union with slavery intact had its lingering echoes. It did not help the white Americans of the two sections learn to love one another better. But neither did it inaugurate an era of continuing and intensifying tension over slavery. Somewhere between the last crisis where we see tensions largely subside and the first where we see them continue, we draw a line and declare the Civil War era commenced.

In doing so, we must remember that the past no more divided itself into discrete blocks than the present. Rather we see trends progress continuously, if not without some acceleration, some slowing down, and reverses. We use periodization to describe, not proscribe. The present trend in these things leans toward pushing the Civil War era further and further back, though not without controversy. Thus we can better tease out the deep roots of the conflict and trace the interdependent evolution of sectional identities that facilitated it. Since South Carolina began the secession movement, twice, the state’s defiance of two tariffs seems like a promising place to look for the war’s deeper roots.

Prelude to the Civil War

Prelude to the Civil War

I began with William W. Freehling’s 1966 book Prelude to the Civil War: The Nullification Controversy in South Carolina 1816-1836. I knew Freehling’s work from The Road to Disunion, where he covers some of the same ground, and saw regular reference to him even in recent antebellum surveys. For an academic book to remain the standard text for a good fifty years speaks to its quality. I looked for other modern books, but found only Richard Ellis’ The Union At Risk: Jacksonian Democracy, States’ Rights, and the Nullification Crisis. Many other books discuss the controversy, but they generally do so in the course of studying something else. One finds footnotes referencing biographies of the principals, especially Jackson and Calhoun, but so far as relatively recent, dedicated works on the controversy itself Ellis and Freehling have the market cornered.

If you want to know more, which should you read? One generally does better to prefer the more recent publication, though not without exceptions. When it comes to Nullification, the exception proves the rule. If one wants to learn about the Nullification Controversy in detail and thoroughly, one should go first to Freehling. It wouldn’t hurt to read the important chapters once and then give them a thorough skim thereafter to help organize things in your mind. The Freehling of the 1960s has not yet discovered his love for especially convoluted turns of phrase and frequent nicknames, but he still writes careful, dense prose. None of that detracts from his probing inquiry, but it takes some getting used to. His biographical sketches probably tell fairly standard stories of South Carolina political careers often enough that he could have skipped several, but do a good job of fixing the diverse cast of characters in your mind. One comes away knowing who wanted what when, why they changed their minds, what tactics they chose, and informed of the critical whys and wherefores all along. To sum up Freehling’s argument in a sentence: South Carolina’s embrace of radical, novel nullification theories served a tactic to save slavery.

Ellis has almost none of that. He concerns himself almost exclusively with discussions of constitutional theory. He tells you right out that he takes theory seriously and views it as intensely important in its own right, whilst taking a few swipes at historians who inquire as to where the theories come from or why people would find them so compelling. Some of his criticism rings true, but I think overall he goes too far the other way. He deals in abstractions to the point that one wonders just why anybody cared so much. This runs a real risk of turning American history into a collection of white men politely discoursing on abstract matters with cultivated, disinterested manners. I don’t know that Ellis entirely avoided that pitfall.

Ellis’ book speaks far more about Jackson than South Carolina. He lists the Nullification Crisis third in his subtitle and in many ways it feels like an afterthought. He spills at least as much ink on the Bank of the United States and Indian Removal as the crisis. For my money, when Ellis writes about nullification he largely writes around it. He sees criticism of Jackson’s moves to suppress the nullifiers as the most interesting part of the story, rather than the thing itself. To the degree the book concerns nullification at all, Ellis argues that the nullifiers adopted a new and novel theory of states’ rights against older states’ rights theories, but their innovation had popularity elsewhere in the country. Jackson, as an exponent of old school states’ rights, overreached and overreacted in ways that generally undermined his position.

I hope the reader doesn’t take this as too damning of Ellis. His book really has a great deal going for it. He looks at the interplay between the Bank, Indian Removal, and Nullification in ways that Freehling does not. He plumbs distinctions between nullifier theories of states’ rights and more traditional varieties in a way that Freehling only references in passing. Ellis does a very good job of placing the crisis in the broader Jacksonian context. That he didn’t write quite the book I wanted, or that Freehling wrote, doesn’t constitute much of a criticism. Having multiple scholars attack a subject from different angles enriches the field. If you want to build a thoroughgoing understanding of the controversy, you should read his book after you read Freehling.

However, it now falls to me to damn Ellis. The Union at Risk has one critical shortcoming, already alluded to, that one needs to keep in mind. If you go to the index, you will find exactly one entry for slavery, referencing a single section of Ellis’ final chapter. The peculiar institution figures into several subheadings in other entries, but they almost invariably send you straight back to that short section. Most of this section downplays slavery’s significance. Ultimately, Ellis admits that slavery played the driving role in nullification. He quotes Calhoun’s admission of the fact to Virgil Maxcy. Buried in the endnotes, he confesses that he agrees with Freehling that slavery drove Nullification. He identifies the strong correlation between heavily enslaved areas and support for nullification, but then goes off the rails:

there seems to be no question but that the institution of slavery was becoming more widespread and that attitudes toward it began to harden after 1815. But the relationship of this to political developments between 1815 and 1854 is murky.

he Union At Risk

The Union At Risk

One might defend that statement for the early part of the time covered, or excuse it as the product of the 1980s lacuna in slavery historiography, but doing so would require us to neglect quite a bit of work on the later end of Ellis’ “murky” period available to him at the time of writing. I suspect that Ellis struggles here with the fact that through most of The Union at Risk, he remains critical of the nullifiers but broadly sympathetic to Jackson until Jackson declares firmly against them. This seems largely about rescuing Jackson’s traditionalist states’ rights ideas from association with nullification whilst simultaneously not delving into where those ideas also came from. The Old Republicans, especially the set around John Randolph in Virginia, had did not scruple to admit that they saw a too-powerful national government as wrong because it imperiled slavery. Daniel Howe Walker notes as much in What Hath God Wrought:

John Randolph pointed out that a protective tariff was in effect a tax on consumers. “On whom do your impost duties bear?” he demanded. The burden of these taxes on “the necessaries of life” would fall on two classes: “on poor men, and on slaveholders.” 66 Randolph had, as usual, cut to the heart of the matter. (page 83)

And

The strident John Randolph of Roanoke made this logic public: “If Congress possesses the power to do what is proposed in this bill,” he warned in 1824 while opposing the General Survey for internal improvements, “they may emancipate every slave in the United States.” (pages 221-222)

This points to an ideology rather less innocent of proslavery conviction than Ellis suggests and something much more in tune with John Ashcroft’s rendition of the Democracy as built, from Jefferson, on to at least implicitly shelter and preserve slavery.

Ellis’ distinction between traditionalist states’ rights and nullification theories deserves consideration apart from the connection to slavery, but even granting that we run into problems. He further denies Jackson’s and his supporters’ proslavery bona fides, casting them as latter-day Jeffersonians who viewed slavery as a necessary evil. Given both Jefferson’s own behavior and Jackson’s great enthusiasm for expanding slavery, this just doesn’t withstand scrutiny. More recent scholarship, as incisively explained by Howe, considers slavery and white supremacy a major priority of the Democracy:

One policy that the Democratic Party embraced consistently was white supremacy. The centrality of white supremacy in Democratic policymaking helps explain that party’s hostility toward Clay’s American System. Democratic suspicion of government aid to internal improvements reflected not a horror of the market revolution but a fear that such a program might threaten the institution of slavery. The danger, from the slaveholders’ point of view, was twofold. In the first place, national plans for internal improvements might be designed to wean areas in the Border States or Upper South away from slave-based agriculture toward a diversified economy in which slavery would become vulnerable to gradual emancipation. In the second place, national plans for internal improvements set a precedent for federal activity that might encourage interference with slavery— for example, by exercising the interstate commerce power over the interstate slave trade. Jacksonians welcomed transporting farm products to market, so long as it could be done without the centralized planning that raised the specter of emancipation. (pages 584-585)

 

This dovetails far better with that backlash against Jackson that Ellis describes than his account of constitutional abstractions isolated almost completely from the factors that drove people to adopt and defend them. More of Ellis’ work seems devoted to preserving “anything but slavery” as a motive than to the slavery he finally confesses to in his endnotes.

This all makes Ellis a contradictory, somewhat confounding read. What he does, he does well. He makes genuinely important points in the course of doing it. But when called upon the probe the reasons of historical actors, rather than just their reasoning, he leaves the history almost completely undone. You will gain from reading him, but reading him alone would leave one with a gravely incomplete understanding of the Nullification Controversy.

NB: My page numbers come from the Kindle edition of What Hath God Wrought, a book good enough to make an argument for ebooks even independent of the sufficient peril it threatens to wayward house pets, exposed toes, and small children. I’ll even forgive it the eyestrain headaches caused by reading hundreds of pages in at a time.

South Carolina’s First Nullification

Calhoun

John C. Calhoun

One simply can’t run a country according to the plan that the nullifiers and states rights men advocated. If a state can overrule federal law on its own say-so, then federal law loses its force. With federal law impotent, the federal government becomes irrelevant and soon dissolves. Some vestiges might remain, but as a practical matter one reduces the Union to a collection of smaller, quarreling nations. Given many states had neither the population nor the economy to manage easily on their own, they would then likely consolidate into somewhat like-minded blocs. These groups would probably not repeat the same mistakes as the previous consolidation. Some nullification proposals foresaw essentially that, most notably the idea that the United States should try having two presidents with veto power over one another. One would come from the North, the other from the South. The Southern president would thus keep the Union forever safe for slavery.

Roger Taney, Chief Justice of the Supreme Court

Roger Taney, Chief Justice of the Supreme Court

The criticism holds true for matters large and small, in principle. We could leave things there, but doing so would require us to ignore the realities of the past. Certainly one could not expect a nation to endure large-scale acts of nullification. If a state or seven rejected losing the presidency or the program of a victorious party in national elections, that more obviously strains the Union and puts nineteenth century democracy in doubt than if it nullifies on a smaller scale. As a practical matter, many Northern states nullified the Fugitive Slave Act. Wisconsin took the extra step of doing it outright, leading to the Taney Court ruling that states had no power to nullify federal laws in Abeleman vs. Booth. Therein, the Court made much the same argument in contemplating the assertion that a state court could interfere with and prevent the operation of federal law:

It would seem to be hardly necessary to do more than state the result to which these decisions of the State courts must inevitably lead. It is, of itself, a sufficient and conclusive answer, for no one will suppose that a Government which has now lasted nearly seventy years, enforcing its laws by its own tribunals and preserving the union of the States, could have lasted a single year, or fulfilled the high trusts committed to it, if offences against its laws could not have been punished without the consent of the State in which the culprit was found.

The rebelling states, of course, would without a trace of irony cite the practical nullification of the Fugitive Slave Act by the North as one of the injustices which drove them to rebellion. They correctly understood the tradition of states rights rhetoric: the issue, however contested, did not go our way and therefore we claim the right to declare ourselves winners. Obviously no nation could let such a thing stand and call itself democratic even by nineteenth century terms. Yet the United States did eventually let it stand. The nation did not spend vast sums and tie up the military to do as it had done to Anthony Burns a second time. Before that, it accepted nullification of a kind from South Carolina. I draw this account from Freehling’s Prelude to the Civil War: The Nullification Controversy in South Carolina 1816-1836.

Anthony Burns

Anthony Burns

South Carolina’s cotton flowed out of the nation through Charleston and a few other lowcountry ports. Those ports thus naturally had ships in and out regularly, if nothing on the volume that New York, Baltimore, Boston, or New Orleans did. Like any functioning port, Charleston saw ships from diverse places. Many of its regular visitors hailed from the North and abroad. These ships had the usual complements, including some black seamen. Those seamen could roam freely about Charleston. To Charleston’s whites, that meant that northern blacks tainted by abolitionism could speak to their slaves. Worse still, Haitian seamen could walk free and tell anybody who asked about their country’s successful slave revolt. All of this in a region of the state where enslaved blacks vastly outnumbered whites. To further complicate matters, many enslavers from Haiti had passed through Charleston when fleeing the revolution. In the 1820s, they had had direct, personal knowledge of what a real slave uprising looked like. If they missed the significance, than the fact that Denmark Vesey used Haiti as an example of what his conspiracy could achieve would have highlighted it to even the dullest wits.

Charleston hung Denmark Vesey on July 2, 1822. Before he died, he brought the black seaman “problem” further into the limelight. With the lowcountry’s enslavers anxious about revolts, feeling embattled by the recent debates over the fate of slavery in Missouri, and a fresh uprising narrowly averted, they felt they had to do something. To answer the dire menace to their lives and their property in lives, South Carolina’s enslavers passed a law that required every black sailor locked away in the town jail for the duration of his ship’s sojourn in Charleston. Thus Charleston imprisoned the free to secure the enslaved at the end of the year.

All of that worked out just fine for Charleston’s fretting whites and just terribly for its free black visitors, precisely as intended. However, it put South Carolina on the wrong side of the United States and the United Kingdom. The two nations had a treaty granting their sailors free access to one another’s ports. This treaty, declared the Constitution

shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

South Carolina passed a state law to the contrary. The UK protested to the Secretary of State, John Quincy Adams. Freehling says that Adams might have gotten Charleston to ignore the law for a time. By the middle of the next year, Haitian and other black seamen moved about Charleston freely once more. This did not suit Charleston’s still-anxious citizens. They arranged a mass meeting in late July, forming the South Carolina Association to supervise enforcement of all South Carolina’s laws controlling black lives. The association named standing committees to do that work, which they soon commenced.

That enforcement led in short order to a court case. Charleston’s sheriff seized a free Jamaican black named Harry Elkinson and locked him up. Elkinson protested and sought habeas corpus proceedings, which he got. Supreme Court Justice William Johnson found the seaman law in violation of treaty and therefore invalid. However, Johnson held that he couldn’t order Elkinson’s release as his power extended only to federal prisoners. The South Carolina Association, for its part, declared the state sovereign and insisted that it had not surrendered its power to suppress revolts. Any act designed toward that end rightfully fell within its power, not the capacity of the United States. The state had not yet articulated a full-blown theory of nullification as Calhoun would later invent, but in pleading its case Benjamin F. Hunt and Isaac E. Holmes laid out an important precursor. Johnson didn’t buy it and laid out a strong refutation in his opinion:

Where is this to land us? Is it not asserting the right in each state to throw off the federal Constitution at its will and pleasure?

John Quincy Adams

John Quincy Adams

Johnson’s opinion provoked a firestorm in South Carolina. If the state could not pass laws to govern its slaves and keep them in slavery, then how could it retain slavery at all? All Haiti’s alleged woes came back to a distant government meddling with slavery. Now they received the same at the imperious hands of a Supreme Court justice. The state ignored the decision and continued jailing sailors. John Quincy Adams kept getting protests from the United Kingdom. He reached out to the Attorney General, William Wirt, for an opinion on the law. Wirt came down firmly against it. In July of 1823, Adams forwarded Wirt’s argument and the protests to South Carolina, asking the legislature to fix the problem.

Though South Carolina’s legislature could not settle on what tone to take, they agreed on the substance. The Senate held that “self preservation”

will never by this state, be renounced, compromised, controlled, or participated with any power whatever.

The House affirmed

The measures directed towards colored persons brought within the territory of this state, are simply part of the general system of domestic police, defensible as such, and absolutely necessary to ensure the safety of the citizens.

In other words, John Quincy Adams could best repose Wirt’s opinion and the British protests in some area perhaps well-suited to the cultivation of mushrooms but otherwise ill-disposed to agriculture. The state acted accordingly, continuing to imprison sailors. Washington and London could protest all they like, but South Carolina did as it willed. London could not perhaps force the issue short of a war. Washington chose not to and let the nullification stand.

Here, for the first time, the state grappled with the issues of the later Nullification Crisis. South Carolina cited the same reserved power of the states to nullify a treaty in the name of internal security that it would later call upon to nullify a federal law. In both cases, its constitutional thinkers discovered this power to save slavery. Victory in the first instance spurred South Carolina onward. If nullification worked once, it could work again.

The Nullification Crisis and Slavery

Andrew Jackson

Andrew Jackson

Once upon a time, South Carolina defied the national government. It declared her rights as a state and struck down a federal law, daring Andrew Jackson to come down and make something of it. The state even tried to raise an army to meet the one Jackson intended to send. Most of the Confederacy’s latter-day boosters don’t know about the affair. Now and then, however, one does find someone aware of history before April of 1861. They will trot out the story of the Nullification Crisis as proof positive that the South (even though only the dominant faction in South Carolina went all-in with nullification) had grievances with the North unrelated to slavery, usually with immediate reference to the tariff.

I don’t propose here to dissect the tariff issue in detail. Others, notably Craig Swain and Andy Hall, have done a good job of that and I don’t yet feel competent to add to it. But I have made my way through William W. Freehling’s Prelude to the Civil War: The Nullification Controversy in South Carolina 1816-1836. I have not yet read the other modern treatment of the event, Richard Ellis’ The Union At Risk: Jacksonian Democracy, States’ Rights, and the Nullification Crisis. I have, however, learned that Ellis agrees with Freehling on the central point that even back in the 1830s, South Carolina launched a fleeting rebellion to save slavery. Both treatments thus depart from prior historians who insisted that in Nullification times, South Carolina had a cause pure and divorced from slavery. My own high school history class followed the older school, to the point where in younger and more ignorant times I once used the argument from Nullification myself.

The intricacies of constitutional theory invented in the late 1820s to justify nullification, a revolutionary step in itself, could probably make for a dozen or more posts. Freehling devotes his longest and most difficult chapter to them. It makes for demanding reading even if one has a strong interest in the subject. The chief primary source, John C. Calhoun’s then-anonymous South Carolina Exposition and Protest (PDF), doesn’t help matters much as the South Carolina legislature did some heavy revising of Calhoun’s text to incorporate multiple different theories of nullification. One ends up with a document somewhat at odds with itself. I may dig into all of that in the future, but today I have a more practical approach in mind.

The argument goes that South Carolina, which the arguer often conflates with the entire South, opposed a high tariff. Sure enough, the United States passed a very high tariff in 1828. Southerners did protest. South Carolina’s congressmen voted through those rates, so one might at once dismiss them as hypocritical. But on the contrary, South Carolina’s representatives voted as they did intending to destroy the bill. They ensured that it would include duties injurious to manufacturers, with Freehling listing high rates on raw wool and molasses in particular as aimed at northern industry. This would, they hoped, separate those manufacturers from the others and turn enough votes to defeat the whole bill. South Carolina bet wrong, finding that enough northerners voted for lower rates on the targeted goods to render the bill acceptable, if imperfect, to the manufacturers that they hoped to turn.

George McDuffie (D-SC)

George McDuffie (D-SC)

The argument continues, tactical blunders aside, that Southerners understood the tariff as picking their pockets to subsidize the development of the North. It didn’t clearly do so, as Crag and Andy show, but they certainly believed that. The popular argument of the time, articulated by George McDuffie on the floor of the House, held that the tariff demanded Southerners give away the proceeds of forty bales of cotton to the taxman out of every hundred they grew.

Here we hit on the central difficulty of taking anti-tariff politics independent from slavery: the enslavers didn’t grow that cotton. Their slaves did. South Carolina’s upcountry, more so than other states, felt the pinch of the depression after the War of 1812. A combination of poor access to credit, even by early nineteenth century American standards, and overextension that came back to haunt the upcountry cotton magnates. They had a great deal of debt taken on in an era of high cotton prices which they had to repay in a time of lower prices. But their objection boils down to the fact that the tariff would cut into the profits they stole from their enslaved labor force. How could anyone understand this as a cause independent from slavery, short of simply not reading or not thinking about it at any length, I don’t know. Rather we have here a clear, specific grievance that arises from and depends upon slavery. Maybe a farmer in Illinois or Maine could have a tariff complaint untainted by human bondage, but not the cotton planters in the South’s most enslaved state. A commercial grievance did not necessarily make for a slavery grievance, but in South Carolina one had precious little commerce that didn’t either arise from or directly serve slavery.

One could argue, if rather selectively, that South Carolinians did not understand the tariff issue as deeply connected to slavery, or at least to proslavery politics. They had a straightforward financial crunch they wanted out of and saw the tariff making it worse, even if their business involved stealing lives and labor. Here too we soon find ourselves confounded by facts. In this case, however, we need to understand a bit more about the South Carolina economy in the early nineteenth century.

Most everyone probably remembers that one could only profitably grow cotton, even with slave labor you could torture into higher yields, along the coast and on the Sea Islands. There enslavers grew long-staple cotton. There, in the swampy lowcountry, South Carolina got its start. In addition to cotton, Carolina enslavers collected the fruit of slave labor on massive rice plantations. Rice required swampy land to grow, something in short supply in most of the upcountry. then Eli Whitney changed the world with his cotton gin, making short-staple cotton a profitable crop in the upcountry and across the Lower South. This turned the inland South from a land of timber stands and wilderness into the richest section of the country. The expansion of short-staple cotton naturally began in South Carolina.

The two cotton fibers, however easily confused, supplied different markets. Long-staple cotton went into luxury goods like lace. Short-staple cotton went into most everything else. Advances in processing made it look briefly like upcountry cotton might force sea island strains out of the market, but improvements in production had mitigated against that and made the years immediately before Nullification relatively comfortable and prosperous for lowcountry enslavers whether they grew rice or luxury cotton. One would not expect them to lead an antitariff crusade in such an environment. In that role, we would expect the upcountry men feeling the squeeze. Yet within South Carolina most of the leading nullifiers hailed from the lowcountry. Clearly they had more than the bottom line on their minds.

The lowcountry’s great fear came in the horrifying specter of debating slavery. The nation’s tiny antislavery movement had sent its first petitions to Congress and the lowcountry enslavers, vastly outnumbered by their human property, believed that discussion of slavery had reached the slaves who took part in Denmark Vesey’s conspiracy. If they did nothing to stop discussion, then their slaves might rise up and murder them in their beds. They had already taken steps in that direction through various vigilance measures in and around Charleston, but a series of fires and rumors of other conspiracies kept them in a state of keen paranoia. Thus they felt they must silence slavery debate forever, for their own wealth and safety and decided they could best manage that by declaring Congress had no power over their domestic institution. Through social connections and shared investment in slave property, they spread their ideas into the upcountry.

Why not just say they set out to defend slavery? In the early 1830s, endorsement of slavery qua slavery lacked the cachet it would later have. A gentleman should hope that at some indeterminate date in the future, slavery would magically end. Until then, he just had to make do with the terrible burden of a fortune beaten, raped, and stolen from the bodies of black Americans. In this way, enslaving constituted a necessary evil. Arguments for the positive good of slavery, though in development, had yet to sweep even South Carolina.

Allow me to close with some words from the nullifiers themselves on the nature of their crusade. Freehling quotes the May 12, 1830, Winyaw Intelligencer:

It is not, it ought to be understood, that the Tariff is only one of the subjects of complaint at the South. the Internal Improvement, or general bribery system, and the interference with our domestic policy-most especially the latter-are things which … will, if necessary, be met with something more than words.

Looking at the justification for internal improvements in the Constitution’s General Welfare Clause, Robert Turnbull argued

these words “general welfare” are becoming every day more and more important to the folks, who are now so peaceably raising their cotton and rice, between the Little Pedee and the Savannah. The question, it must be recollected, is not simply, whether we are to have a foreign commerce. It is not whether we are to have splendid national works, in which we have no interest, executed chiefly at our cost. … It is not whether we are to be taxed without end. … But the still more interesting question is, whether the institutions of our forefathers … are to be preserved … free from the rude hands of innovators and enthusiasts, and from the molestation or interference of any legislative power on earth but our own? Or whether, like the weak, the dependent, and the unfortunate colonists of the West-Indies, we are to drag on a miserable state of political existence, constantly vibrating between our hopes and our fears, as to what a Congress may do towards us, without any accurate knowledge of our probable fate, and without a hope of successful resistance.

Thompson Player, an upcountry man, agreed that the tariff

is only preparatory to ulterior movements, destined by fanatics and abolitionists to subvert the institutions and established policy of the Southern country, to gratify their capricious and pretended charities.

Robert Barnwell held that

there are some changes in the very forms of our domestic policy, to which they could scarcely persuade us quietly to submit. And there are no changes, however vital and subversive of our most absolute rights, which fanaticism and misguided philanthropy would not attempt.

William Preston said it more bluntly still:

the slave question will be the real issue-All others will be absorbed into it. The hypocrisy of the north & the fears of the South will combine to bring us to the same result, and will Louisiana cling to her sugar and give up her negroes?

All quotes from Freehling.

John C. Calhoun

John C. Calhoun

I could go on. I may still in the future. But I can think of no better spokesman for the nullifiers than their leading ideologist, a fixture of Carolina politics and figure on the national stage for decades, none other than John C. Calhoun. In September of 1830, Calhoun wrote to Virgil Maxcy:

I consider the tariff act as the occasion, rather than the real cause of the present unhappy state of things. The truth can no longer be disguised, that the pecular domestick institution of the Southern States and the consequent direction which that and her soil and climate have given to her industry, has placed them in regard to taxation and appropriations in the opposite relation to the majority of the Union, against the danger of which, if there be no protective power in the reserved rights of the states they must in the end be forced to rebel, or, submit it to have their paramount interests sacrificed, their domestick institutions subordinated by Colonization and other schemes, and themselves and children reduced to wretchedness. Thus situated, the denial of the right of the State to interpose constitutionally in the last resort, more alarms the thinking, than all the other causes; and however strange it may appear, the more universally the state is condemned, and her right denied, the more resolute she is to assert her constitutional powers lest the neglect to assert should be considered a practical abandonment of them, under such circumstances.

Unpacking States Rights

John C. Calhoun

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

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 FetishNearly 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

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

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

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.

Some bonus Madison

James Madison

James Madison

Today’s post ran very long, but it began life as very broad study of the idea of secession in the antebellum republic and then shrank when I realized that I had written mostly about the founders. In light of both the length and the focus, I opted to leave this piece of evidence out. I present it here as a coda to the rest:

James Madison lived into the 1830s, long enough to follow the events of the Nullification Crisis and offer his opinion on the matter. He put them to paper in a letter to Nicholas Trist, of later Mexico negotiation fame, on December 23, 1852:

It is remarkable how closely the nullifiers, who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes & lips, whenever his authority is ever so clearly & emphatically agst. them. You have noticed what he says in his letters to Monroe & Carrington ps. 43 & 202. Vol 2d with respect to the power of the old Congs. to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover his remark that it was not necessary to find a right to coerce, in the Federal Articles; that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject.

We can’t know what a remarkably long-lived Madison would have said about Lincoln’s call for troops to suppress the slaveholder insurrection in 1861. Living through those extra decades, his opinions informed by every development between his letter and then, he might have thought rather differently. But the Madison, and his memory of Jefferson, of the Jackson years considered the coercion of delinquent state entirely appropriate and, indeed, inherent in the Union’s nature. In calling nullification a “colossal heresy” he wounds like an adherent to the strict and permanent Union that a certain sort, unburdened by an obligation to facts, insist that Abraham Lincoln invented. I know Lincoln held a patent, but don’t recall it involving time machines.

What did the founders think of secession?

James Madison

James Madison

The conventional story goes something like this: The founders donned their powdered wigs, put their knee breeches on, and cheered as George Washington applied the requisite amount of boot leather to the necessary number of British posteriors. Thirteen colonies turned into thirteen free and independent states. They did not constitute, in any meaningful sense, a nation. The founders shared with the people of the several nations an abiding suspicion of central authority. Only the Revolution had united them and with it done they could all go back to those nations and have nothing more to do with one another. They never intended to create a consolidated republic and always imagined association between their states as strictly voluntary and subject to unilateral termination, secession in a word, at any time. To the degree the former colonies associated, they associated like you might associate with someone you met once at a party. Having a good time together did not make them married. This vision persisted through the Antebellum until the Tyrant Abraham I, the Hammer of Dixie, enslaved us all. Thus they said “the United States are” before the war and “the United States is” after, or even if they didn’t then they held sentiments largely along those lines. Shelby Foote said so.

I cannot improve on Andy Hall’s demolition of the argument from phrasing. Americans did not primarily or exclusively say “the United States are” until the Civil War and take up the singular verb after. The transition happened decades earlier. But that still leaves the meat of the story. Did antebellum Americans, most especially the founders whom the secessionists claimed as their own, consistently understand the Union as inherently voluntary, with states free to depart at will or, failing that, when they felt things sufficiently dire to justify an extreme step? In short: no.

By that I don’t mean to say that secession never crossed the minds of anybody prior to the late antebellum, nor that talk of disunion only arose late in the age. Threats of it go back to the Constitutional Convention. But those threats did not necessarily indicate general approval of the concept. Rather the convention, twelve of thirteen states strong, came together to curb state sovereignty. The Articles of Confederation had proved insufficient to the task of governing the nation because the states had much greater power than the national government, even if that government constituted a permanent union. One needn’t interpret the text to drive that conclusion, incidentally, the Articles call themselves perpetual:

Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

A perpetual union hardly incorporates in itself any right to secession. Finding the power of the central state insufficient, must we think that the founders got together in Philadelphia to remedy that and then undermined their own work so comprehensively as to nullify it at the whim of any given state? The requirement that all states agree on legislation proved a critical weakness in the Articles, so would they really write it back into the Constitution? People in the past can do things that seem to us perverse and understand themselves instead as consistent with sound principles, but that suggestion would not have made any sense at the time.

The Philadelphia debates bear this out. Just a few days ago I noticed that Robert Middlekauf’s The Glorious Cause the Oxford History of the United States volume on the revolutionary era, sold by Amazon as an ebook for all of three dollars. I have not taken much interest in revolutionary history due to all the patriotic myth making. I know that historians do good work there, but the flag waving enthusiasm put me off long ago. All the same, I wanted to check something I’d heard in Mike Duncan’s wonderful Revolutions podcast. So I winced at the title and got my file. I have only read the chapters on the Constitutional Convention and ratification, but they proved a gold mine of information about what the founders thought on the issue. As much of the Philadelphia deliberations concerned representation in the Congress, they naturally dwell upon what states deserve in the way of power. It also made for a really good read. I intend to go back and finish the rest at some point.

I already knew that James Madison came to Philadelphia with a plan to grant the national government a sweeping veto over any state legislation, but the account I got back in high school painted the advocates for equality of the states in the Congress and those who argued for apportionment by population as roughly equal. In fact, only New Jersey and New York favored the former’s equal representation plan when it came down to voting. If a broad consensus existed in Independence Hall, it did not view the states in themselves as the principal components of the new nation. Otherwise one would expect much stronger votes in favor of state equality. What does this have to do with secession? A weak government could hardly prevent it. A strong one could coerce recalcitrant states and wake them from any dreams they had of disunion and nullification alike.

The advocates for state equality touched on the connection themselves. As Middlekauf has it:

Ellsworth, Sherman, and Johnson, all from Connecticut, made the heart of the case for equality of representation with minor, though longwinded, aid from Luther Martin. The essential weakness in the argument for proportional representation, they insisted, was that it rested on a misunderstanding of the Confederacy. The states in reality were joined together by an agreement much like a treaty; they were free and sovereign. Now they were asked to give up their equal voices in the Union, in effect to be consolidated out of existence

James Wilson

James Wilson

Ellsworth further insisted that every confederacy in history had equality among its members, a point of history more convenient than correct. Madison and his fellow Virginian James Wilson would have none of this. Middlekauf continues:

Both rejected the small-state contention that a treaty bound the Confederation together. Far from a union of equals, the Confederation possessed some-but not enough-authority over the states. […] Wilson agreed and rejected the Connecticut proposal for a compromise -the lower house to be apportioned according to population, the upper according to state equality-and cited statistics which purported to show that such an arrangement would permit the minority to control the majority. Seven states, Wilson noted, might control six; seven with one-third of the country’s population would control six with two-thirds of the population. “Can we forget,” he asked, “for whom we are forming a Government? Is it for men, or for the imaginary beings called States?”

That argument sounds downright twentieth century. Earl Warren’s Supreme Court rejected malapportionment of state legislatures in the 1960s on the grounds that “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” I have heard that decision, which articulated the “one person, one vote” standard, damned as a grievous offense against state sovereignty. This sovereignty forms a necessary prerequisite for unilateral secession as practiced by the Confederates and admired by their various descendant movements today. Madison, back when the states had a far better claim to sovereignty in matters save for secession,

denied flatly the states were sovereign-“in fact they are only political societies. There is a graduation of power in all societies, from the lowest corporation to the highest sovereign. The states never possessed the essential rights of sovereignty. These were always vested in Congress.” The states, Madison argued, “are only great corporations, having the power of making by-laws, and these are effectual only if they are not contradictory to the general consideration. The states ought to be placed under the control of the general government-at least as much as they formerly were under the King and British Parliament.” And from these propositions about the character of the states-devoid of sovereignty, mere corporations, properly under the thumb of the national government-it followed that since America was a republic, representation must be based on the people.

A state which does not have final sovereignty, which constitutes a mere corporation and with laws that hold only as by-laws of its particular interests rather than paramount legislation, could hardly secede on its own initiative alone.

Madison further opined, implicitly, on the nature of state governments in The Federalist, Number 10:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

A state government must, by definition, constitute a smaller society than the general government. A local government would constitute one still smaller. Madison considered the smaller a far greater risk to the rights of others, a position often born out in twentieth century Supreme Court cases. One could also reach further back and look at the sort of oppression and outright persecution that the slave states indulged in to protect slavery. If one counts up state-level emancipations and exempts states built out of territories which had nationally imposed bans on slavery in their bounds prior to statehood, we have to stop counting states that ended slavery on their own and without war forcing matters at the Mason-Dixon Line and Pennsylvania-Ohio border. This gives us only Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, and Pennsylvania.

From these nine we could subtract Maine as it had a Massachusetts-imposed slavery ban before it became a state, and Vermont, where slavery had never been practiced and so eliminating it took little exertion. This leaves us with seven states to live up to the laboratory of democracy reputation. Against them, we could count both the fifteen slave states of 1860 and the two slave territories of Utah and New Mexico. I would not say that states necessarily and always take the low road, and some have gotten out in front of the national government often enough, but the overall example does not give much encouragement when concerns go beyond simple things like traffic laws and into questions of minority rights.

Alexander Hamilton

Alexander Hamilton

We know how the dispute worked out in Madison’s day, just as we know how it did in the case of Lee v. Grant. Adherents to other theories of national composition certainly existed. They had enough strength, when the advocates of state equality made it into a make-or-break issue, to force compromises. But the notion that the founders acted with one mind, however always borderline absurd, and that this mind fixed on the sovereignty of states simply doesn’t have a leg to stand on. National supremacy flowed not from Lincoln in Washington, but from the convention Washington chaired in Philadelphia.

But, the conventional story then goes, whatever happened at Philadelphia ratification came contingent upon various undertakings. Most famously, the states only ratified with the promise that the Congress would pass a Bill of Rights and with some kind of tacit understanding that if this did not work out, the states could quit the union and resume their independent sovereignties.

This point came lately to my attention via a video Al Mackey posted over at Student of the Civil War. It begins with Akhil Reed Amar, a constitutional law scholar who teaches at Yale, discussing the legality of secession. The secession discussion only consumes the first portion of the run time, but in it Amar makes some important points.

Madison did not get his global veto of state enactments for the Congress, but he did get the Supremacy Clause:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Roger Taney, Chief Justice of the Supreme Court

Roger Taney

By definition, sovereignty rests with whoever has the final say. The Constitution did not grant that power to the states, nor hazily delegate it to them by not granting it to the nation. It instead strips them of any such power to make laws, even state constitutions, contrary to the laws of the United States. Note that the provision does not limit itself to the national Constitution or treaties, but reaches to any federal legislation whatsoever. Even if the states had sovereignty before ratification, they ceded it then. This leaves no room for nullification either of one law or, in its ultimate form, the nullification of all federal laws by secession. A state could pass a law nullifying the tariff or the Fugitive Slave Act, as respectively South Carolina and Wisconsin did, but such laws existed only on paper and until a federal court declared them void at the latest. Roger Taney’s Supreme Court agreed on the second point when it tossed Wisconsin’s act of nullification, to the thunderous silence of most of the usual states rights enthusiasts. What part of this did South Carolina miss? Presumably the part where its nullification must meet with general approval as such a nullification would strengthen and preserve slavery whereas Wisconsin’s would not.

Amar further argues that if the founders intended the Constitution to come with a free trial period and sovereignty-back guarantee, then they did not act it. During the ratification debates in New York, with the vote very close and Alexander Hamilton not sure he had the votes, the anti-federalists suggested that they would give way for the promise of a Bill of Rights. Failing delivery on that front, New York would secede. Hamilton asked Madison for his opinion of such a deal. Even at this critical juncture when New York’s refusal would bisect the Union, possibly fatally, Madison declined to endorse compromise:

I am sorry that your situation obliges you to listen to propositions of the nature you describe. My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification.

[…]

This idea of reserving right to withdraw was started at Richmd. & considered as a conditional ratification which was itself considered as worse than a rejection

If Madison would have broken principle in the name of pragmatism, one must imagine he would have done it then. The Constitution already had the nine states it needed to go into effect, plus an extra, but the loss of New York would have meant a great blow. Unlike Delaware, South Carolina, or other states which desperately needed a union to sustain themselves, New York with its great port and generous hinterland might have been able to go it alone. Its bad example would weaken the new union from the start, hence his, Hamilton’s, and Jay’s writing of The Federalist to begin with.

John C. Calhoun

John C. Calhoun

Lest one think Madison and Wilson alone, or necessarily extreme, in looking into the future and cursing the names of John C. Calhoun and his unruly brood of nullifiers and disunionists, despite the votes at the convention and final Constitution arguing very much otherwise, Hamilton himself got into the act in The Federalist, Number 11:

Let the thirteen States, bound together in a strict and indissoluble Union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world!

Strict and indissoluble, not loose and easily broken.

The framers did not envision anything like what Lincoln called the dreams of the Confederates:

In their view, the Union, as a family relation, would not be anything like a regular marriage at all, but only as a sort of free-love arrangement,—[laughter,]—to be maintained on what that sect calls passionate attraction. [Continued laughter.]

I don’t know how the founders chose to organize their private time save for the evidence given by their progeny, acknowledged and otherwise. In their political acts they present a clear record favoring not states, with the national government as a kind of necessary evil, but rather saw it as a necessary and positive good and, moreover, as a clear way to suppress contrary movements in the states. That doesn’t mean we would necessarily find all their motives for doing so appealing or in line with those who favor a stronger national state today, but they did what they did and wrote what they wrote.

This myth, like the myth of the antislavery Lee, will endure this and many other blog posts. It will survive the scorn of historians. The supposed advocates of original intent will read it, as they do all other inconvenient facts, as irrelevant rather than persuasive. They and their more radical compatriots, latter-day secessionists who ask us to believe that just this once the rhetoric they employ lacks the white supremacy which has so consistently informed it in the past, must wrap themselves in a pretend history of original intent. The real one doesn’t have much to offer them.

The framers envisioned the possibility of unilateral secession, as attempted in 1860-1, and nullification as attempted by South Carolina and Wisconsin alike, and foreclosed each in Philadelphia and at ratification. Antebellum Americans knew as much and needn’t live in the cold heart of Yankeedom or on the Illinois prairie to notice it. The Confederates at the time understood their movement as revolutionary, only deciding that they really did have a clear legal right after losing the war. Why should we pretend otherwise, unless we aspire to rehabilitate the some of the same politics that they did? Secession for what? States rights for what? If one can get a straight answer from the Confederacy’s latter-day partisans, in itself a major achievement, and they have cleverness enough to not simply say “slavery” with one of the usual codes, then I usually hear preserving the founders’ vision of the Union. It didn’t take a deep look into the founding era to find out what that vision entailed. One can and should note that it included slavery for at least the foreseeable future. But it did not include secession or nullification at all.