UNION AND STATES’ RIGHTS: A HISTORY AND INTERPRETATION OF INTERPOSITION, NULLIFICATION, AND SECESSION 150 YEARS AFTER FORT SUMTER
by Neil H. Cogan (ed.). Akron, OH: University of Akron Press, 2014. 299pp. Paperback. $24.95. ISBN: 978-1-937378-13-4.
Reviewed by Elizabeth Beaumont, Department of Political Science, University of Minnesota. Email: beaumont[at]umn.edu
Until recently, it was easy to assume that notions of interposition, nullification, and secession were all but dead in American politics. While the rhetoric and deployments of states’ rights remain powerful forces, these particular permutations seemed to have been largely buried by the weight of the secession crisis which launched the Civil War. This fine volume illuminates the complex roles of these concepts in the framing and development of American constitutionalism and, by doing so, allow us to more carefully assess their return.
As editor Neil Cogan and several authors emphasize, to the extent that these constitutional concepts were ever actually dead, they have risen from the ashes. In recent years, some popular groups and elected officials have begun arguing that some or all of these methods of opposing federal law – and even withdrawing from federal Union – are legitimate. Most famously, in 2009, Texas’s governor, Rick Perry, suggested that the state was so distressed by national economic policies that it might consider secession. While few states’ rights arguments go this far, there has been a wave of moves for some version of interposition or nullification (claims of states’ rights to intervene against or to void federal legislation states find problematic or unconstitutional, respectively). Groups affiliated with the modern Tea Party helped revive these concepts, especially by urging state legislatures to nullify the federal Patient Protection and Affordable Care Act or “Obamacare.” But interposition and nullification are not only tools for political conservatives: they can also be seen as the implicit underpinnings of state referendums to legalize medical or recreational marijuana.
As these examples suggest, the issues contemplated in this volume are alive in the present, and they have the potential to become increasingly important to American politics, perhaps even fueling a radical strain of the New Federalism launched in the Nixon and Reagan eras (Conlan 1998). Moreover, despite the somewhat narrow-sounding title, the questions raised by this volume also go to the core of American constitutionalism: What is the relation between and among citizens, states, and the Union? How should we understand principles and structures of federalism and popular sovereignty? Who possesses authority to interpret the Constitution and where are the lines between interpretive disagreement, legitimate opposition, and lawless rebellion?
This volume provides a range of [*150] perspectives on federalism and states’ rights, although most of the contributors do not engage in explicit consideration of contemporary states’ rights debates. Rather, as its title suggests, much of the focus is on the major states’ rights crises in the antebellum and Civil War eras. Many authors do, however, provide historical evidence, analytical frameworks, and reasoned arguments that can inform our judgments about past and present arguments regarding the extent to which individual states should be able to contest, avoid, void,– or even exit from – federal law.
Not surprisingly, the book’s timeline begins long before Fort Sumter. Chapters by Jack Rakove and Robert Natelson explore federalism in relation to James Madison’s views on constitutional framing and the first major post-ratification crises involving states’ rights. Madison is an obvious touchstone for any consideration of states’ rights. Rakove and Natelson review his leading role in shaping the initial design of the U.S. Constitution’s novel form of federalism, explaining and advocating this power-sharing system during the ratification debates, his authorship of the 1798 Virginia Resolutions in response to the Alien and Sedition Acts (which joined the Jeffersonian Kentucky Resolutions), and his concern over the nullification crisis of the 1830s.
While proponents of states’ rights can cite some of Madison’s writing, especially from the 1790s, these chapters show both the complexity of Madison’s views and his strong opposition to some uses of interposition and nullification. Rakove’s more extensive investigation insists that, while Madison’s views on federalism shifted over time, his writing indicates that his “first commitment” was always to the Union, that he was deeply disturbed by South Carolina’s nullification of the “the “Tariff of Abominations” in 1828, and that he worked assertively to reject misperceptions that the “Doctrine of ’98” associated with the Virginia and Kentucky Resolutions supported South Carolina’s actions (pp.24-27).
To pull Madison back from the strong pro-interposition and pro-nullification camp, Rakove, a foremost scholar of Madison’s constitutional theory, draws on his “Vices of the Political System of the United States” and his “Notes from the Philadelphia Convention,” among other writing. He suggests that while Madison retreated from his early position supporting coercive national power over states, his mature position involved Federalist 39, 49, and 50-related views endorsing a type of “judicial federalism” in which the Supreme Court and federal courts should help establish boundaries of national power (pp.16-24). Madison’s mature position, argues Rakove, affirms the conception of the Constitution as a binding agreement in which people of the states agreed to create a new national government with “substantial manifestations of sovereignty the states no longer retained” – not a “compact between individual states and the Union” (p.26).
Rakove endorses Colleen Sheehan’s (2009) portrayal: that while Madison believed that states had an important role to play in preventing national overreaching, he never supported a “strong” form of constitutional [*151] interposition by states. Even in 1798, the Virginia Resolutions were not conceived to void or prevent enforcement of the Alien and Sedition Acts; they were rather designed to help rally public opinion and encourage other states to engage in collective protest (p.26).
Robert Natelson offers a somewhat overlapping perspective, but focuses more specifically on Madison’s views of the important role of state conventions, cooperatively and collectively, for pursuing constitutional change through formal Article V channels (p.35). To contextualize this, Natelson notes the important role of intercolonial and interstate conventions and committees during the Revolutionary Era. He suggests these models of collaboration were precursors to the goals of Article V and to Madison’s explanation that this mechanism would enable “the State governments to originate the amendment of errors.” (Federalist 43, at p.34). Madison insisted that the Virginia Resolutions were “strictly within the limits of the Constitution,” argues Natelson, in part because he believed Article V acknowledged states’ authority to communicate with each other regarding their constitutional concerns and potential desires for amendment (p.37). Moreover, in a public letter to Congressman Edward Everett during the nullification crisis, Madison emphasized that state opposition to federal oppression should be channeled first through institutional arrangements, checks and balances, and constitutionally-authorized methods. The next step should not be nullification, but pursuit of Article V’s state-application-and-convention process for amendment. Beyond these constitutionally-sanctioned methods for opposition and change, Madison suggested, the only further option was a final resort to armed revolution (p.38).
Rakove’s and Natelson’s chapters do not engage directly in debates over originalism – the elephant in the room of constitutional theory (and a topic taken up by some other contributors). Their historical analyses, however, problematize attempts to use Madison’s “original” constitutional theory of federalism to justify states’ rights claims to forceful uses of interposition, nullification, and secession.
Analyzing Secessionists’ States’ Rights Arguments
Thirty years after the nullification crisis of the 1830s, South Carolina made a novel American move for secession, instigating the Civil War. This secession crisis comprises the focus of the book’s lengthy second section. Paul Finkelman’s chapter posits the basic hypocrisy of using states’ rights claims to justify secession in 1860-61. The notion that states’ rights was the primary motive for secession has been discredited by many scholars. But Finkelman, a foremost scholar of slavery in American constitutionalism, provides a thorough evisceration of the Confederate (and neo-confederate) premise of states’ rights. While Rakove and Natelson present Madison’s constitutional theory as rejecting the “supremacy of states’ rights” ideology underlying South Carolina’s tariff nullification, Finkelman provides a somewhat contrasting view by focusing on the pro-slavery slant of the original Constitution’s operation. [*152]
Whatever Madison’s theoretical views on Union, federalism, or dangers of faction may have been, the constitutional system he helped design enabled a “slaveocracy” in which slave states and their asserted rights dominated national politics. The skew of national politics toward the interest of slave-holding states was so extensive in the decade prior to the secession crisis, argues Finkelman, that there is no plausibility to secessionists’ claims that they were acting to protect their states’ rights from violation. Southerners’ assertions of states’ rights were not simply a subterfuge for protecting slavery, but one riddled with hypocrisy: their actual arguments were often opposed to states’ rights and in favor of a powerful central government – so long as it was a pro-slavery central government.
To support this unorthodox contention, Finkelman chronicles the extent to which Southern states’ and their asserted rights benefited from a constitutional system and national policies that protected slavery: Not only did Southerners consistently win the Presidency, but “since 1850, they had won almost every debate in Congress, and almost every federal law dealing with slavery had benefited the South” – including the Compromise of 1850, Kansas-Nebraska Act, and so on. The Supreme Court, too, contributed to dominance of southern states’ slaveholding rights through decisions regarding fugitive slaves, black citizenship, slave transit, and other issues raised in cases such as JONES V. VAN ZANDT, STRADER V. GRAHAM, MOORE V. ILLINOIS, as well as the infamous DRED SCOTT (pp.53-66).
Finkelman then shows how the actual substance of secessionists’ claims rejected states’ rights – or, at least the rights of states opposing slavery. On examination, he argues, the public declarations of secession “mostly complained that the Northern states were asserting their states’ rights and that the national government was not powerful enough to counter these Northern claims.” In addition, secessionists “did not complain that an oppressive national government was infringing on the civil liberties of Southern citizens; rather the complaint was that the national government refused to suppress the civil liberties of Northern citizens” (pp.53, 69-72).
Finkelman concludes by rejecting Confederates’ nostalgic attempts to analogize their secession to the American Revolution. Based on the preponderance of historical evidence, their motive for secession could not be seen as seeking the right to an equal seat at the table of national decision-making. Instead, secessionists were insisting that their recent – and only partial – loss of electoral supremacy in national politics suddenly constituted “tyranny.”
A related chapter by Stephen Neff involves some similar conclusions regarding the incoherence of Confederates’ claims regarding states’ rights justifications for secession. While various legal arguments for secession might have been deployed – and sometimes were at various times – Neff finds that the primary assertion in 1860-61was that “secession was a lawful remedy available to the Southern states in the face of material breaches of the constitutional compact of 1787 by the free states” (pp.89-92). Secessionists’ favored “breach of contract theory” was [*153] neither strongly textual nor originalist, but rather drew largely from theories of natural law and the law of nations.
In Neff’s analysis, the justification advanced by Alexander Stephens and others was comprised of three generally extra-constitutional views: a view of the original constitution as a compact among sovereign states; a view that the remedy for a breach of this contract was secession or “recission;” and a view of the right of Southern states to self-judgment regarding breaches of contract. The second and third components, Neff suggests (though without extensive discussion), drew largely from Southern leaders’ adaptations of the natural law theory of John Locke, as well as law of nations arguments offered by European theorists such as Hugo Grotius and Emmerich de Vattel (pp.97-103).
Reinforcing Finkelman’s contentions, Neff emphasizes that secessionists were not championing states’ rights vis-à-vis federal government, but rather the rights of Southern states against those of Northern states. And he, too, emphasizes differences between political circumstances in 1860-61 and the situation of 1776 (p.102). Importantly, Neff suggests that secessionists’ extra-constitutional compact theory – including appeals to natural law to justify status quo economic and social arrangements – were not buried by the War. Rather, he sees this as a theory that reappeared in influential new constitutional claims and doctrines, including those upholding unlimited freedom of contract and rights of property-holders against government regulation (p.106). While this is an intriguing perspective on the rise of laissez-faire doctrines, Neff does too little to develop it. More work would be required to substantiate the idea that secessionists’ “breach of contract” theory – rather than, say, liberal economic theories that sometimes linked the notion of “freedom of contract” with abolition and against slavery – was the ideology behind Lochner era economic and social perspectives (see, for example, Gillman 1993).
Analyzing the Constitutionality of Nullification and Secession
Four other authors focus on the potential legality or constitutionality of nullification or secession. H. Jefferson Powell enters the fray by asking whether an individual state may legally secede from the Union, or whether its only option is to attempt a revolution. To tease this out, Powell considers the distinction between the concept of “secession” as the “exercise of a legal right” to withdraw that requires respect from the US government, and the concept of revolution as an “attempt to overthrow the existing government” that the US government might lawfully attempt to suppress (p.111).
As Powell notes – and Lincoln acceded – a moral right to revolution is a founding premise of American constitutionalism. Lincoln’s view, however, was that the secessionists of 1860-1861 were exercising neither a moral nor constitutional right deserving respect. He deemed their acts “insurrectionary or revolutionary” attacks on the constitutional plan for “perpetual” union (quoted at p.112). Lincoln’s nationalist view was not new, but had been articulated by prominent officials such as Joseph Story during the nullification crisis of the 1830s. [*154]
Powell notes that although Southern leaders such as Confederate President Jefferson Davis sometimes described secession as a legal right, they also sometimes described it as an extra-legal or extra-constitutional revolution (pp.114-116). In Powell’s view, this was because they recognized that secession can never be a narrowly legal question. To consider the view that secession might be a legal right and yet a moral and political wrong, Powell turns our attention to the 1825 arguments of an influential early American constitutional jurist, William Rawle. Rawle’s complex views suggested that while the Union was designed to be permanent, the people always retain “a right to determine how they will be governed,” which could lead to a lawful process of secession (quoted at p.119). However, Rawle also argued that this “due process of secession” could not emerge from any regular act of a state legislature, but “the people” of the state must “distinctly and peremptorily declare” their will in “a solemn, serious act …. manifested in a direct and unequivocal manner” (at p.119). In addition, the state would then have legal duties, such as paying its portion of the national debt and giving up all claims to national benefits, US treaties, and protection. Yet even following such a strictly legal “due process” of secession, warned Rawle, would be a moral and political disaster: it would encourage jealousies, internal discord, or foreign invasion, and it would undermine Americans’ moral duty to preserve the constitutional system of self-government. Thus, Rawle suggests that exercising a lawful right to secession should not be considered a practical or desirable option, but should only be considered as an abstract “limiting case” against national supremacy (p.120).
Two other chapters, by Daniel Hamilton and Lee Strang, consider the extent to which originalist approaches can provide determinate answers to questions about the legality or constitutionality of interposition, nullification, and secession. Hamilton, like Powell, considers the problem of focusing on the legality of secession. Hamilton’s central expositor is historian Kenneth Stamp, who used a type of “historically nuanced originalism” to posit an “essential ambiguity” regarding secession in the text of the original constitution, the Philadelphia Convention, and the ratification debates (p.81). Hamilton suggests a similar “originalist” indeterminacy regarding the legality of Lincoln’s unorthodox actions during the Civil War, such as suspending habeas corpus rights and issuing the Emancipation Proclamation. (pp.83-86). This slim chapter concludes by criticizing attempts to study secession from a narrow or isolated legal standpoint alone. This is problematic, Hamilton warns, because it tends to occlude “the centrality of slavery to secession” (p.86).
Strang offers a contrasting take on the potential for originalist approaches to shed light on the constitutionality of nullification and secession. He also reaches much farther into the present than many of these authors by suggesting some general guidelines for evaluating contemporary disputes over the limits of states’ rights based on a version of this approach.
Strang retraces the competing “compacttheory” and “nationalist theory” of federalism and constitutional [*155] union that clashed repeatedly in the late 18th and early 19th century. These theories sparred in disputes ranging from the nullification crisis of the 1830s to the Marshall Court’s decisions in landmark cases such as MCCULLOCH V. MARYLAND and MARTIN V. HUNTER’S LESSEE. Even Northern states flirted with compact theory and nullification. The Hartford Convention, for instance, suggested that states should reject the Embargo Law, War of 1812, and congressional actions regarding western territories (p.207). But while Strang agrees with Hamilton and Stampp (among others) that the constitutionality of interposition and nullification was an “open question” under the original Constitution, he insists that the Civil War resulted in a binding “anti-nullification/ anti-secession political settlement” – comprised of the Reconstruction Amendments, TEXAS V. WHITE, and so on – “participated in by the major governmental actors, political parties, and American citizens” (pp.204, 211, 217).
Strang further suggests that the Civil War “may constitute a binding constitutional precedent that today’s government officials must respect,” at least regarding questions of nullification and secession. He argues that the War is both an “originalist precedent” that can form the basis for subsequent decisions, and it is a “nonoriginalist precedent” requiring federal judges “to give nonoriginalist judicial precedents” such as TEXAS V. WHITE, “significant respect.” Unfortunately, the idea of a “non-originalist precedent” is not fully explained, nor does Strang take up the difficult question of the potential scope for these “Civil War precedents” to inform or reshape contemporary constitutional law.
Daniel Farber, too, believes that the Civil War and Reconstruction Amendments settled the constitutionality of secession. Noting the rise of neo-secessionist ideas, such as those advanced by Texas Governor Rick Perry in 2009, Farber asserts the need to “clarify the nature of the constitutional order,” especially the nature of sovereignty, citizenship, and national protection (pp.131-132). Farber argues that the text and purpose of the Reconstruction Amendments “resolved the previously contested issue of the relative priority of state and national allegiance” and “laid to rest” any remaining questions about the right of states to secede (p.130). As he sees it, this transformation is textually “enshrined” primarily in the 14th Amendment’s Citizenship clause, Privileges and Immunities Clauses, and section 5. The Citizenship Clause guarantees national and state citizenship for those born in the US (or naturalized), thus making state citizenship secondary and derivative and removing citizenship from state control.
In addition, the Privileges and Immunities Clause prohibits states from depriving citizens of federal rights – including the right to US citizenship – and section 5 grants enforcement powers to Congress. Thus, as Farber sees it, these provisions should be interpreted as rendering secession unconstitutional because it would deprive the US citizenship and all related rights and protections from the residents of a seceding state.
Along the way, Farber notes the shift in conceptions of the Union and citizenship brokered by the secession crisis, Civil [*156] War, and constitutional reconstruction (pp.140-141). As congressional Republicans began post-war law-making, he argues, they began pressing forward a more powerful national conception of citizenship and fundamental rights in the Civil Rights Bill and 14th Amendment (pp.144-148). In Farber’s view, the Supreme Court’s reading of the Amendment’s Privileges and Immunities clause was wrong to reject a sweeping vision of national rights and citizenship, but right to assert the primacy of national citizenship and its rights – rights that would be deprived or violated by secession (p.150).
As this assessment suggests, while Strang’s and Farber’s chapters offer largely reinforcing rejections of secession, Farber’s interpretation of the Reconstruction Amendments have potentially far-reaching consequences for many types of constitutional debates, beginning with a revisiting of the SLAUGHTERHOUSE CASES. Farber’s concern with fundamental shifts in the constitutional terms of citizenship, sovereignty, and national protection also bear on other contemporary disputes regarding states’ rights and other issues. For example, Farber does not discuss the Supreme Court’s recent decision, SHELBY COUNTY V. HOLDER, but the constitutional interpretation he suggests clearly differs from the reasoning the majority used to strike down section 4 of the Voting Right Act.
While most contributors to the volume focus on nullification and/or secession, Christian Fritz sympathetically reinterprets interposition. Rightly understood, Fritz says, interposition is a legitimate yet “overlooked tool of American constitutionalism.” It has been “largely lost to us today” because it has been “a casualty of politics and sloppy history,” including damning association with the Civil War and an “unfortunate presentism” preventing us from seeing beneficial possibilities (pp.166-7).
To rehabilitate interposition, Fritz reminds us that there were different and competing conceptions of constitutionalism, popular sovereignty, and federalism in the antebellum era. He suggests that one conception, adopted by James Madison, included a notion of interposition as a “different process and responsibility” for constitutional monitoring. From this view, interposition was distinct from nullification, and instead involved the more scientific meaning of a movement of something between two others “so as to interrupt and bring attention to the essence of that relationship” (p.169).
This variant of interposition was a method through which people could seek the reversal of national laws they considered unconstitutional or unjust, but it was not a claim of state sovereignty or state power to void federal action. Rather, it was a communicative tool for “sound(ing) the alarm to the people,” who were the sovereign, in order to focus their attention, allow them to scrutinize federal government, decide whether it was acting constitutionally, and decide whether to respond through standard constitutional channels (free speech, press, petition, voting, etc.), constitutional amendment, or, as a last resort though extra-constitutional measures or revolution (pp.168-170, [*157] 191). This type of interposition “supplemented other devices structurally embedded in the Constitution to keep the government responsive to the sovereign, such as periodic elections,” and it offered a “sporadic tool available to the people when circumstances warranted the exercise of that authority” (p.191).
The historical grist for this view comes primarily from Madison’s arguments in the Report of 1800 regarding the Virginia and Kentucky Resolutions (p.180). While in Federalist 49 he had suggested the notion of “departmental review” available to different branches, Madison added the notion of “state and citizen interposition” in 1800. He suggested “several constitutional modes of interposition by the States against abuses of power” that could involve different agents, instruments, and actions – including individual citizens, groups of citizens, state legislatures acting on behalf of citizens, and parties. These actors could utilize a variety of channels for contesting the constitutionality of national actions, including public opinion, petitions, protests, instructions to representatives, and efforts for constitutional amendment (pp.168, 178-9). In Fritz’s reading, a successful interposition could operate in two ways: by persuading the national government to repeal law by focusing negative attention on them, or if “the people [in their sovereign capacity]… chose to change the constitutional order”(pp.169, 175).
Fritz suggests that this notion of interposition was useful and even necessary in the early Republic. Without instant communication or full-time state legislatures, it was difficult for people to be informed about or respond to congressional actions. Interposition thus offered a “useful communication mechanism” for sharing sentiments of citizens and state legislatures (p.169).
Together with Rakove and Natelson, Fritz, rejects the idea that Madison held a “revolutionary” view of interposition. During the Nullification Crisis of the 1830s, Madison did not reject interposition, but he rejected the idea that South Carolina’s solo act was constitutionally legitimate, rather deeming it a revolutionary act against the Union. Madison now described the Supreme Court and the sovereign people as possessing ultimate constitutional authority “in the last resort.” But he still argued that the earlier interpositions of Virginia and Kentucky were permissible methods for encouraging people to challenge national law through constitutional channels – petition, speech, voting, and the like(p.189). Fritz leaves us with the open question of whether Madison’s “communicative” concept of interposition is either viable or appropriate in the present – a present where methods of communication and much else is vastly different. While Fritz believes that it is clear that “Madison would have approved of a vigilant citizenry participating in monitoring the federal constitutional order,” it is also clear that Madison was deeply suspicious of “factions” and organized attempts to interfere with the rule of law (Federalist 10) (p.192). Just as Madison’s outlook on citizens’ and states’ participation in constitutional rule shifted considerably based on the historical circumstances, parties, and contested laws involved, our own outlook on the potential benefits and drawbacks of a rehabilitation of interposition is likely to depend on who [*158] is doing the interposing and for what purposes.
Sanford Levinson brings the standpoint of constitutional design to his reconsideration of federalism. From this perspective, federalism can be distinguished from decentralization – which can occur for convenience or efficiency – because it originates as a legal method for managing intergroup conflict or distrust that may arise based on ethnic or cultural divisions, disparate resources, and so on. Federalism creates a system that seeks to address distrust among groups within a given country by promising one or more subnational units a “protected domain of subnational control” involving “some degree of guaranteed autonomy with regard to at least some significant issue(s),” some reserved powers, some limits on national government, and “legal authority to veto at least certain national requests” (p.238).
Within the US Constitution, Levinson finds only a paltry list of explicit guarantees of state autonomy: managing elections; state legislatures’ power to appoint Senators prior to the 17th Amendment; right to state boundaries (Article IV, sec. 4); right to state militias (2nd Amendment); extradition of fugitives – including fugitive slaves prior to the 13th Amendment (Article IV); and alcohol (21st Amendment) (pp.240-242). Strikingly, Levinson does not include the 10th or 11th Amendments on his list, nor does he explain their omission. This complete silence is odd, given that the 10th Amendment guarantees that “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.” Presumably, because the 10th Amendment does not specify any particular policy areas or identify explicit “textual assignments of authority to the states,” Levinson feels comfortable omitting it. But proponents of states’ rights believe the openness or “glittering generalities” of the language of reserved powers is precisely what protects significant state autonomy. The 11th Amendment is far narrower, of course, but it explicitly guarantees some aspects of states autonomy through sovereign immunity (limiting the power federal courts to hear and decide suits brought against states).
In addition to his list of explicit guarantees, however, Levinson notes that there are many implicit but nontextual mechanisms for maintaining a set of power-sharing deals. Substantively, these deals include empowering the new national government to do things that would help protect states from military and economic threats – especially national defense from external threats through a national standing army, supported through national taxation, and national control of currency –while promising that states would maintain considerable autonomy. The problem, however, was how to maintain these power-sharing deals over time. To shed light on this, Levinson employs a federal design framework suggested by Mikhail Filippov, Peter Ordeshook, and Olga Shvestova (2004), which considers three “levels” for protecting federal bargains. Specific textual promises (which Madison deemed mere “parchment barriers” in Federalist 48); institutional [*159] structures, such as the design of the Senate, a federal judiciary that would ideally serve as a neutral “umpire” for federalism, and state militias; and culture and ideological values, such as attachments to state government Federalist 46 and the norm of “bi-sectional accommodation” (or what Garrisonians termed a “bargain with the devil”) that enabled the Constitution (pp.246-247).
Yet all of these “self-maintaining” institutional and cultural protections for federalism that underwrote the early US constitutional system largely broke down by 1860, says Levinson, because they could not withstand the combined assaults of slavery and territorial expansion. Moreover, using the level-2 mechanism of state militias to conduct a “show of force by an aroused citizenry” and “mobilize itself against” a claim of “centralized oppression” seemed to lead into secession (pp.252-253). Thus, there may be no fail-safe way to secure a federal bargain.
On the question of secession, Levinson takes an iconoclastic view. Because he is not solely concerned with the American case, Levinson can suggest that there should be options for “legitimate secession” comparable to economist Albert O. Hirschman’s proposed option of “exiting” from a disagreeable political situation (Jenna Bednar (2008) similarly emphasizes exit options for “robus” federalism). Levinson then suggests thinking of federal power-sharing bargains as akin to “marriage” and suggests that one might want a “no-fault divorce” “because one feels totally ignored,” or, even if one can speak, one feels that “no one genuinely listens or… responds adequately to one’s complaints”(p.253). If this seems too flippant, Levinson notes that Lincoln himself humorously allegorized secessionists’ views as treating the Union as a “free-love arrangement” rather than a binding marriage. Pursuing the marriage allegory, Levinson asks whether contemporary Americans would want to prohibit an “aggrieved spouse” from divorcing itself from the U.S.or pursuing “’unilateral secession’ from the marriage based on the logic of individual consent and the illegitimacy of the state’s forcing a continuing relationship upon someone.” He stretches his analogy into a more uncomfortable or impertinent provocation – given that so much of this volume is focused on a secession crisis sparked by desires to practice slavery – by adding that this divorce-seeking someone “might even view such forced continuation [of the marriage] as akin to involuntary servitude or slavery” (p. 254).
Levinson does not directly address the irony of analogizing the constitutional theory of “perpetual Union” to a theory of “involuntary servitude.” Instead, employing a subtler strategy, he directs our attention to just how unhappy and dysfunctional the American “marriage” between slave-holders and non-slaveholders was, and how unclear it was whether the marriage could be saved by tightening the national embrace of slavery. He points out that, in 1861, the Corwin Amendment was adopted by Congress and began moving forward in states. This was an “anti-Thirteenth Amendment” that would have permanently and irrevocably protected slavery within states. Levinson also points out that many of those most deeply opposed to slavery, especially [*160] Garrisoning abolitionists, had urged the desirability of disbanding the existing “Union with slaveholders” long before Fort Sumter: they saw no marriage worth saving, either.
Counterfactuals encourage us to imagine other possible worlds and paths not taken. If the Corwin Amendment had been ratified, perhaps at least a few Northern states, too, would have decided that disbanding this unhappy Union, not fighting for it, was the best option. But neither knowledge of this possibility nor knowledge of abolitionists’ “anti-Union” stance can provide an answer to the difficult question Levinson poses to support his “no-fault secession” theory: Was fighting a “Civil War (of the Roses)” costing 750,000 lives to preserve a dysfunctional Union “worth it”? Yet we can’t ponder this question without recognizing a fundamental flaw with analogizing a complex political union – especially this one – to a marriage between two consenting adults. At the very least, reducing a political conflict into a simple binary of two equal and free partners, one of whom wishes to exit, leaves out the fact that a political “divorce” affects millions of people, many of whom may not have the ability to freely “consent” to this separation and what it will mean for their futures. And, in the antebellum US, this included millions of slaves who were robbed of the capacity to voluntarily consent to any political agreement and denied any right to “exit” from their situation ( a situation far more dire than whatever the South could claim regarding its own unhappiness in this political marriage). The North had its own tragic race relations, but if one were to use some type of familial analogy for this secession crisis, it seems something more akin to a situation in which the more abusive of two troubled parents seeks separation rather than face potential reform.
In his conclusion, Levinson shifts to a perspective beyond the US in order to emphasize that neither federalism nor secession, as abstract concepts and political possibilities, is inherently good or bad. Rather, they are contingent and open to different uses. For example, American federalism has often facilitated racism; but it has also facilitated the rise of same-sex marriage within some states. Likewise, uses of secession are far-ranging, and many cases differ from the American Civil War example. They include everything from the American Revolution of 1776 to more modern secessionist movements within Yugoslavia, Czechoslovakia, Pakistan, Sudan, Ukraine, and many other examples. Putting these divergent examples on the table reminds us that we can neither equate secession with the single, highly fraught American case nor evaluate its merits on the basis of this singularity.
Levinson leaves us with another thought experiment. If Texas pursued the calls of former Governor Perry and others for secession from the current Union, would we want to call in troops and potentially wage war against a Texas militia? Or, would we want to instead permit “political divorce” and “demand only that negotiations be entered into on what might constitute fair terms of dissolution, given, for example, the extensive bases of the U.S. armed forces that dot the Texas landscape”? (p.257).
Remembrance of Things Past [*161]
Finally, Norman Spaulding takes us to a discussion of Civil War historiography by using the “interpretive” renovation of the Fort Sumter National Monument as a foil. Prior to 1995, the Fort’s exhibit, like many other Civil War battlefields, gave virtually no attention to slavery. But while the Park Service’s move to provide more “holistic interpretations” of the War may seem an improvement, Spaulding finds that incorporating slavery is “nearly as vexing as past efforts to leave it out” (p.261). Many of the exhibits and markers seem to shirk questions of accountability in favor of a type of “interpretive equanimity.” Visitors are presented with a range of views suggesting a forward, seemingly uninterrupted progress of liberty – from Benjamin Franklin to Sojourner Truth and Harriet Tubman to W.E.B. Dubois to Albert Einstein. Wholly absent are the views of liberty from figures such as John Calhoun or “fire-eaters” and secessionists. Likewise, a historical timeline leading up to the Civil War includes only a few spare, general references to slavery while devoting great detail to political and military tactics and technologies (pp.263-4).
Spaulding notes that while narratives about the period of the Civil War play an outsize role in national memory, these narratives have frequently slanted away from slavery and race and toward other themes, often influenced by perspectives of the South: the notion of the “Lost Cause,” the myth of Lincoln, the revisionists’ arguments of a “needless war,” legalistic and constitutional defenses of secession (pp.266-7). Moreover, even as there have been moves toward great emphasis on slavery by the Park Service, some have criticized this as ‘political correctness’ and insisted that the slavery did not “cause” the war, since it existed “for more than two hundred years without resort to arms,” and rather the true cause was “the Northern change of attitude” epitomized by the Republican Party (p.269).
Spaulding argues that because slavery, secession, and the Civil War disrupted older frameworks of national identity associated with liberal democracy and the American Revolution, there is a “historiographic temptation, if not imperative” to try to resolve these contradictions (p.272). The attempt to create a more seamless narrative helps explain the lack of attention to illiberal and non-democratic aspects of American constitutionalism, including the “unamendable” Corwin Amendment “protecting the least democratic attribute of the Constitution,” the “non-democratic” processes involved in the Emancipation Proclamation and Reconstruction Amendments, and the curtailing of the Amendments’ liberal and democratic effects (pp.274-6). Spaulding suggests that even slavery itself can be used to try to dispel democratic failures: Contemporary Americans can breathe more comfortably knowing that slavery has been defeated and nothing in the present could compare to this level of despotism (p.277).
Back to the Future of States’ Rights?
While many of the specific legal and constitutional issues addressed by this volume seemed dormant until Rick Perry’s secession rhetoric and Tea Party-backed efforts to nullify Obamacare, the question of states’ rights is continuously at the center of American politics. [*162] Conflicts over the extent to which particular states should be able to block, oppose, or avoid federal laws and policies with which they disagree clearly did not end with the Civil War. They have influenced everything from “massive resistance” to school desegregation to current questions about “unfunded federal mandates,” medical marijuana, and much else. This volume provides a rich and relatively far-ranging set of perspectives on some of the most important clashes over states’ rights in American history. Although many of the authors criticize the particular ideologies and actions related to the Civil War, the sum of the chapters is neither a thorough rejection nor a ringing endorsement of interposition, nullification, or secession as general constitutional concepts or potential tools for the present. The chapters by Finkelman, Farber, Fritz, and Levinson provide particularly insightful and often provocative perspectives on the past uses and potential current legitimacy of the strongest permutations of states’ rights. The volume deserves attention and careful reading: it should not only inform debates about the history of American constitutionalism, but a range of debates over current controversies and possible futures of federalism and states’ rights (see, e.g. Barber 2013).
Barber, Sotirios A. 2013. THE FALLACIES OF STATES’ RIGHTS. Harvard University Press.
Bednar, Jenna. 2008. THE ROBUST FEDERATION: PRINCIPLES OF DESIGN. Cambridge University Press.
Conlan, Timothy J. 1998. FROM NEW FEDERALISM TO DEVOLUTION: TWENTY-FIVE YEARS OF INTERGOVERNMENTAL REFORM. Brookings.
Filippov, Mikhail, Peter Ordeshook, and Olga Shvestova. 2004. DESIGNING FEDERALISM: A THEORY OF SELF-SUSTAINABLE FEDERAL INSTITUTIONS. Cambridge University Press.
Gillman, Howard. 1992. THE CONSTITUTION BESIEGED: THE RISE & DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE. Duke University Press.
Sheehan, Colleen. 2009. JAMES MADISON AND THE SPIRIT OF REPUBLICAN SELF-GOVERNMENT. Cambridge University Press.
ONES V. VAN ZANDT 46 U.S. 215 (1847).
MARTIN V. HUNTER'S LESSEE 14 U.S. 304 (1816).
MCCULLOCH V. MARYLAND 17 U.S. 316 (1819)
MOORE V. ILLINOIS 55 U.S. 13 (1852)
SCOTT V. SANFORD 100 U.S. 1 (1857).
SHELBY COUNTY V. HOLDER 579 U.S. -- (2013).
SLAUGHTERHOUSE CASES 86 U.S.36 (1873).
STRADER V. GRAHAM 51 U.S. 82 (1851).
TEXAS V. WHITE 74 U.S. 700 (1869).
Copyright 2014 by the author, Elizabeth Beaumont