21st Century vs. 19th Century

Ed Kilgore has an excellent piece on the rise of states rights rhetoric in the South. Kilgore notes how progressives laughed at Texas Governor Rick Perry when he suggested that Texas could secede from the union, but like myself, Kilgore takes this seriously. He also notes that a resurgence in nullification is rising across the South. Oklahoma Governor Brad Henry recently vetoed a states rights statement that passed his state's legislature. South Carolina Governor Mark Sanford is said to be moving toward this position. Naturally, Sarah Palin is as well. At least one serious candidate for the governor of Georgia has already endorsed nullification.

Rick Perry:

"I believe that our federal government has become oppressive in its size, its intrusion into the lives of our citizens, and its interference with the affairs of our state. That is why I am here today to express my unwavering support for efforts all across our country to reaffirm states' rights affirmed by the Tenth Amendment to the U.S. Constitution. I believe that returning to the letter and spirit of the U.S. Constitution and its essential 10th Amendment will free our state from undue regulations, and ultimately strengthen our Union."

Nullification based upon a perverse reading of the 10th amendment reached its apogee under John C. Calhoun and South Carolina in the 1820s. But it began with the Kentucky and Virginia Resolutions. While Thomas Jefferson and James Madison claimed that nullifying the Alien and Sedition Acts was constitutional, they were wrong. As horrid as those laws were, the federal government clearly had the constitutional right to preempt the states. And if that wasn't clear in 1798, the many decisions of the Marshall court should have made it that way.

Modern-day nullifiers and secessionists are able to gain significant traction from their connections to Jefferson and Madison. To me, this shows that we need to reexamine how appropriate it is to base modern-day decisions on what people were thinking over 200 years ago. Moreover, if Jefferson and Madison thought one thing on this issue, Washington, Hamilton, and Adams thought quite differently. Nonetheless, when political movements can make connections to the Founding Fathers, it gains them real political capital.

Andrew Jackson put the smackdown on Calhoun during nullification. First, he threatened to hang him. But from a legalistic perspective, Jackson said that nullification was "incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed."

In Kilgore's comments, a reader also offered John Harlan Stone's opinion on the 10th amendment, given in United States v. Darby, 1941. This puts the lie to the idea to nullifiers ideas about the amendment and provides clear precedent for the federal government's right to see its laws enforced.

"Our conclusion is unaffected by the Tenth Amendment which provides: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people'. The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.

From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end."