by Michael Maharrey
NOTE: This editorial was submitted to the Knoxville News Sentinel. They didn’t see fit to publish it. So we will run it here.
“Its advocates – disunionists, slaveholders, segregationists – have been consigned to the dustbin of history.â€
Daniel Feller omits an important group from his list of nullification advocates in his April 2, Knoxville News Sentinel editorial titled Nullification: discredited and discarded
Abolitionists.
Yes, those opposing the Fugitive Slave Acts appealed to the power of the states to nullify unconstitutional acts.
On March 19, 1859, the legislature of Wisconsin passed a joint resolution declaring the U.S. Supreme Court’s override of the Wisconsin State Supreme Court in the case of Sherman Booth “without authority, void and of no force.â€
Federal agents arrested Booth for aiding Joshua Glover, a runaway slave from Missouri. He was tried, convicted, fined and imprisoned for violating the Fugitive Slave Acts – laws abolitionists considered unconstitutional because they denied runaway slaves due process and forced free northerners into acting as slave catchers. The legal saga stretched out more than five years, with the state of Wisconsin vigorously defending Booth and asserting its right to nullify an unconstitutional act.
Those events in Wisconsin illustrate the spirit of state resistance to unwarranted federal overreach advocated by James Madison in Federalist 46.
Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.
In fact, the Joshua Glover episode fostered the birth of the Republican Party, and unified divided political groups in an organized opposition to slavery.
In his rush to paint nullification advocates as knuckle dragging racists, Feller conveniently cherry-picks history, leaving out important facts about nullification and its application. He fails to mention that South Carolina “backed down†in its tariff nullification battle only after the feds agreed to compromise and incrementally decrease the tariff of 1832 – at least a partial win for the nullification principle. No mention of northern states appealing to the idea to resist federal military conscription during the War of 1812, or of Ohio affirming the principle in opposition to the second national bank. He fails to mention that nullification was never used in support of slavery. Why would it even prove necessary? Slavery was the law of the land. And Feller doesn’t explain that pre-civil war supporters of nullification viewed it as an alternative to secession not its “logical conclusion.â€
More importantly, Feller discards nullification to the “dustbin of history†without even offering his readers an explanation of the concept, its origins or the principles upon which it rests. Thomas Jefferson articulated the principle in the Kentucky Resolutions of 1798.
The several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
The framers created a federal government with separated powers and checks and balances. Based on the same principle, they also intended the states to stand as a check on the federal government as a whole. Jefferson makes this clear, as did James Madison in a sister resolution passed in Virginia the same year.
Far from a concept worthy only of the refuse heap, nullification provides a tool to resist unwarranted, unconstitutional and overreaching federal acts. Not to defy the law of the land, but to cast off acts of an unrestrained federal government acting beyond its constitutionally prescribed limits.
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