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The Return of John C. Calhoun

There was plenty of chuckling in progressive circles when Texas Gov. Rick Perry made public remarks that sounded like a semi-endorsement of the idea that his state might want to secede from the United States, as it tried to do in 1861, or reclaim the independence it gave up in 1845. But Perry and a growing number of other Republican politicians are now embracing an idea that dates all the way back to 1832: that states have a constitutional right to nullify what they consider to be illegitimate acts of the federal government. As you may recall from your high school history lessons, the effort to put that idea into practice, by South Carolina at the urging of former vice president John C. Calhoun, didn't work out too well, though it was later cited as a precursor to the secessionist movement led, again, by South Carolina.

The vehicles for the sudden contemporary resurgence of nullification theories are "sovereignty resolutions" being introduced in the legislature of as many as 20 states, and passing in at least one legislative chamber in eight states this year.

The language of these resolutions, and particularly the throat-clearing "whereas" clauses, isn't uniform, but virtually all have a kicker similar to this Texas resolution, which Rick Perry endorsed:

That the 81st Legislature of the State of Texas hereby claim sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States; and, be it further RESOLVED, That this serve as notice and demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers; and, be it further RESOLVED, That all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or that requires states to pass legislation or lose federal funding be prohibited or repealed.

While these resolutions obviously aren't going to be enforced, they squarely assert the power of states to unilaterally define the powers of the federal government and to order said government to "cease and desist" in exercising them. That is nullification.

And what's the justification for going all John C. Calhoun at present? Here's Perry:

"'Millions of Texans are tired of Washington, D.C. trying to come down here to tell us how to run Texas,' Perry said in a speech supporting House Concurrent Resolution

"'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,' he continued. '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,' he said."

In other words, Rick Perry doesn't like "liberal" legislation, and now that his party is no longer in power in Washington, he's asserting the right to ignore any laws that don't comport with his own view of "the letter and spirit of the U.S. Constitution" or what's "oppressive" or "undue."

Perry's hardly alone among significant Republican pols. Down in Georgia, Insurance Commissioner John Oxendine, a very serious candidate for governor (and previously considered something of a "moderate" by Georgia GOP standards) has joined the "sovereignty resolution" parade, though not until after the Georgia Senate passed one of the resolutions (which apparently few senators actually read).

And there's at least one report that SC Gov. Mark Sanford and--wait for it!--Alaska Gov. Sarah Palin support the state sovereignty "movement." Palin will have to choose sides, or perhaps centuries, soon enough, since the Alaska legislature has sent her a resolution for her signature.

As someone just old enough to remember the last time when politicians in my home southern region made speeches rejecting the Supremacy Clause and the 14th amendment, I may take this sort of activity more seriously than some. But any way you slice it, Republicans are playing with some crazy fire. For all the efforts of its sponsors to sell the "sovereignty resolution" idea as a grassroots development flowing out of the so-called Tea Party Movement, its most avid supporters appear to be the John Birch Society and the Council of Conservative Citizens, the successor to the White Citizens Councils of ill-fame. And given the incredibly unsavory provenance of this "idea," it's no surprise that these extremist groups are viewing the "movement" as an enormous vindication of their twisted points of view.

If John C. Calhoun offered the definitive articulation of the nullification theory, his nemesis, President Andrew Jackson, offered the definitive response, which holds true today. He said the doctrine 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."

A more pungent commentary on the latter-day nullification movement was offered yesterday by Digby:

Can I just say what a bunch of whining little wimps these Republicans all are? They love to present themselves as stoic, manly warriors, loving their country above all else, willing to lay down their lives for it.

Until something happens they don't like and then they want to blow the thing up.

I hope Maine Senators Olympia Snowe and Susan Collins, who are being practically begged by conservatives to leave the Republican Party on the heels of Arlen Specter, are paying attention to the "sovereignty movement." They, after all, voted for the stimulus legislation that apparently motivated these calls for a state-based revolution against the popularly elected government of the United States. So they might want to stand with America, and with the legacy of both Jackson and Lincoln, not John C. Calhoun.

UPDATE: I should have mentioned that the one governor so far who had to deal with an "sovereignty resolution" that got through the legislature is OK Gov. Brad Henry, who vetoed the measure. For his pains, he was attacked by Republican state senator Randy Brogdon in an unintentionally hilarious statement:

“At the end of the workweek, when everyone else had left the Capitol, Brad Henry used his veto power to reject the Constitution he swore to uphold,” said Brogdon. “With the stroke of the pen, the Governor decided to let President Obama and Congress continue to erode our Constitutional rights.”

“This is not an isolated case,” said Brogdon. He then referred to Governor Henry’s veto on legislation that would have banned embryonic stem cell research. “In less than one week’s time, Brad Henry has vetoed life and liberty.”

“This is not about left vs. right or liberal vs. conservative,” continued Brogdon.

Right you are, senator. It's about the twenty-first century versus the nineteenth.

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To the extent that these intellectual lightweights (and God knows there are none lighter than my Governor, Rick Perry) purport to base their resolutions on the Tenth Amendment, it would be worthwhile to note the following language from Justice Stone in United States v. Darby, 312 U.S. 100, 123 (1941):

"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. [citations omitted]

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. [citations omitted]"

This is still the law and should always be the law because the Amendment originally had the word "expressly" in it right before the word "delegated." Had that word remained, a respectable argument could be made that perhaps this Amendment amended the Necessary and Proper Clause and rejected the idea of implied powers. See U.S. Const., Sec. 8, Cl. 18. However, it's removal can lead only to the conclusion that the Congress and the States indented to leave the implied powers created by the Necessary and Proper Clause intact.

I find it interesting that these resolutions purport to assert the state's authority over "all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States."

The 10th Amendment itself essentially states that all powers not granted are reserved to the states "or to the people." Essentially, states that pass this thing are ALSO purporting to wipe out any powers that might arguably be reserved to their citizens. At least, they are asserting that the state can make assert control over ALL nondelegated powers, including powers that might arguably be construed as "reserved to the people." I'll note that the 10th Amendment plays its part in decisions recognizing more implicit rights of citizens over states, most notably privacy, sexual freedom, and the like.

These resolutions are pernicious in more ways than one, whether by outright design or because they are poorly thought-out.

Interesting post, Ed. Also interesting to note that Calhoun wasn't exactly the granddaddy of the nullification doctrine. Nope, that honor goes to Old Man Liberty himself -- Thomas Jefferson. More than a generation before Calhoun went to the mat over the tariff, T.J. set the nullification precedent in an anonymously-penned resolution he drafted for his friends over in Kentucky.

Have a listen to minutes 25:40-33:00 of this recent episode of BackStory, the public radio show I produce. In it, our three historian-hosts explain what T.J. was up to and explore some of secession's deep history: http://www.backstoryradio.org/2009/02/laboratories-of-democracy/

Re: Ed Kilgore's mocking of the "sovereignty movement" and the prospect of secession, I'll just quote Mahatma Gandhi, “First they ignore you, then they laugh at you, then they fight you, then you win.” Hide and watch, Ed... your laughter will be short lived.

Davis Mauldin
Tennessee

Davis

After watching the Republican party completely devolve into something so primitive and hypocritical, lacking any subtlety or even irony, I can't say that I would mind losing Tennessee. Go for it. You can have my home state while you're at it, too: Mississippi. Why don't you take AL, AR, LA, TX, KT, SC, NC, OK, KA, and AK with you as well. As a matter of fact, I'd strongly encourage the North to subsidize the South in building a solid wall around its territory.

Good bye, and good riddance. We don't want you anymore, we don't like you anymore, and we haven't needed you in the Union since Day 1. Take the hint and get out.

The progressive North and West are sick of having to live with you. You're like the white trash uncle we're all embarrassed to invite to our family gatherings.

By all means, leave the union. I don't know WHAT Lincoln was thinking starting a war to keep you in the Union in the first place. You weren't worth it, and never will be.

To all of you secessionists:

PS: Good luck funding all the services you take for granted, like highways, schools, post offices, and otherwise. Since we make up 2/3 of the current economy, have every major school save for Duke, and have a 22 percent lower divorce rate than the Christian Coalition states, we'll be richer, smarter, and have happier families. When your middle class disappears, your social infrastructure collapses, and your education levels bottom out, why don't you just join with Mexico since you're already down there. The two of you won't have that much of a difference anymore, and you can happily wallow in your ignorance and stupidity together. Misery loves company, and that's pretty much all you'll have to look forward to when you thoroughly shoot your feet off when left to your own devices.

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