I have often read commentators on the “right” talk about States’ Rights and lament that it has become a neglected concept in modern America. It is not uncommon to have “conservative” pundits state that the Confederacy was right about States’ Rights. I understand what they are saying but they are wrong in that there were two different understandings of States’ Rights in the early Republic and they should not be confused. I say good riddance to the one and mourn the loss of the other.
The Nullification Crisis occurred in 1832-1833 when the State of South Carolina nullified the Federal import tariff dubbed the “Tariff of Abominations” and refused to collect the tariff. They cited a version of States’ Rights doctrine that I will call State Sovereignty to support their actions. President Andrew Jackson, who was a very strong States’ Rights advocate, rejected the stance that a State can unilaterally nullify federal law. Most States at the time, and President Jackson, believed in Dual Sovereignty which didn’t allow for unilateral nullification of Federal law. The difference in the two is stark and they should not be confused.
I am starting to hear talk in social media about resurrecting State Sovereignty, and calling it States’ Rights, claiming States have the right to secede from the Union. Maybe differences in worldview have become so great that red states and blue States should go their own way but State Sovereignty shouldn’t be used to justify the divorce.
What is State Sovereignty? State Sovereignty, used by South Carolina in 1832-1833 and the Confederate States in 1860-1861, held that the States prior to the Union being formed were sovereign, independent States. When the Constitution was ratified the States retained their sovereignty. South Carolina claimed that they may have had a moral obligation to follow the Constitution but not a legal obligation. Also, the only arbiter between the States was the other States, the Supreme Court, which was a Federal institution, had no jurisdiction.
During the Nullification Crisis the State of Massachusetts provided a summary of South Carolina’s position of State Sovereignty that I think is fair:
It has been promulgated as one of the first and fundamental principles in their new theory of the Federal Government, that not one jot or tittle of the sovereignty of any State was surrendered or compromised, in any manner, at the formation of the union. That a State has the right of course to be its own interpreter of the laws of the General Government, and to be the judge in the last resort of their validity. That, whenever a State, in its sovereign capacity, shall be pleased to pronounce that the Congress of the United States have, in regard to any of their enactments, transcended the authority delegated to them by the Constitution, all such acts must thenceforth, so far at least as concerns the citizens of such a State, be considered as utterly void and ineffectual. Furthermore, it is contended, that a declaration, of the kind above mentioned, is not only binding upon all within the jurisdiction of the disaffected State, but conclusive also, for the time being at least, against all the authorities of the General Government. From this novel and most extravagant doctrine, it results as a consequence, that an act of the highest legislative authority of this nation, whatever may be its scope or object, or however urgent in reference either to the foreign or internal affairs of the whole people may have been the cause of its adoption, must, when thus brought into question, remain as it were in abeyance, at the commandment of a single State. In other words, that the vast and complicated machinery of the National Government shall be made to stand still, until a grand Convention of twenty-four independent, contending sovereignties [Note: there were 24 states at the time], if so many should be pleased to assemble on the occasion, shall have considered and determined the question of its validity.
State Papers on Nullification, Report of a Committee of the Legislature of Massachusetts, on the Resolves of South Carolina, proposing a Convention of the States, pp. 247-248
What is Dual Sovereignty? This is simply the idea that the Federal Government is sovereign in those responsibilities specifically designated to it by the Constitution and the States are sovereign in those areas not specifically delegated to the Federal Government. If a problem arose between the States then the U.S. Supreme Court would be the arbiter between them.
During the Nullification Crisis the State of Delaware passed a series of Resolves that clearly outline this belief:
Whereas, a Convention of the people of the State of South Carolina has undertaken, by an ordinance passed in November last, to declare certain acts of Congress, for imposing duties and imposts on the importation of foreign commodities, null and void, and not binding on the State, its officers and citizens; and has prohibited the enforcement of those laws within the limits of that State, and has also prohibited any appeal from the decisions of the State Courts, wherein the authority of the ordinance shall be drawn into question, to the United States Courts: And whereas, this measure has been communicated bu order of the Convention to the Governor of this State, for the purpose of being laid down before the Legislature, and it is expedient that the sense of the people of this State should be expressed in relation thereto—Therefore:Resolved by the Senate and House of Representatives of the State of Delaware, in General Assembly met, That the Constitution of the United States is not a treaty or compact between sovereign States, but a form of government emanation from, and established by, the authority of the people of the United States of America
Resolved, That the Government of the United States, although one of limited powers, is supreme within its sphere, and that the people of the United States owe to it an allegiance which cannot be withdrawn, either by individuals or masses of individuals, without its consent.
Resolved, That the Supreme Court of the United States is the only and proper tribunal for the settlement, in the last resort, of controversies in relation to the Constitution and the Laws of Congress.
Resolved, That if in the regular action of the Government, mischief of any kind be produced, the proper remedy is to be found in the elective franchise, and the responsibility of its officers.
Resolved, That in cases of gross and intolerable oppression, which in a Government like the United States, can be little else than a hypothesis, the natural right of self defense remains; but which must, in the nature of things, be an appeal to arms, and subject to all the consequences of resistance to the constituted authorities. In such a case the measure is revolutionary, and the result remains in the hands of the Almighty.
Resolved, That the Convention of South Carolina can no other or greater right to annul or resist the laws of Congress, than any assemblage of an equal number of individuals in any part of the United States; nor can any assemblage, however large, have any other or greater right, for such a purpose, than belongs to each individual citizen, considered as a constitutional measure.
Resolved, That it is a subject of regret, that such a delusion should exist among any portion of the citizens of that State, towards whom the people of this State, entertain the kindest feelings, with whom they stood side by side in the war of the revolution, and in whose defence their blood was freely spilt. But if the measure which has been adopted is intended as the precursor of resistance to the government, the people of Delaware will not falter in their allegiance, but will be found now as then, true to their country and its government.
Resolved, That we cordially respond to the sentiments of this subject, contained in the able Proclamation of the President of the United States, and shall be at all times prepared to support the United States, and shall be at all times prepared to support the Government in the exercise of its constitutional rights, and in the discharge of its constitutional duties.
Resolved, That the Governor be requested to transmit a copy of these Resolutions and the accompanying Report of the Committee to the President of the United States, to each of our Senators and our Representatives in Congress, and to the Governors of the respective States and Territories of the United States of America.JOSHUA BURTON,
Speaker of the Senate.
THOMAS DAVIS,
Speaker of the House of Representatives.Passed at Dover, January 16th, 1833.
State Papers on Nullification, Resolves on the same subjects, by the Legislature of Delaware, pp. 190-91
In case you haven’t guessed my stance on this issue already, I believe that Dual Sovereignty was the legitimate States’ Rights position. This quote summarizes my thoughts very well:
For their part, the unionists continued to remain hostile to nullification and to support Andrew Jackson and traditional states’ rights values. In his annual address to the legislature in November 1833, Lumpkin [Governor of Georgia] observed that “that the value of the Federal Union should have become a familiar subject of calculation is truly alarming….” And a short time later in his second inaugural address he defined his constitutional beliefs in the following way that completely endorsed the concept of dual sovereignty: “I shall constantly bear in mind that we are all citizens of Georgia, as well as citizens of the United States. That we owe our allegiance to both governments. That both governments are ours, and are equally indispensable to our happiness and prosperity and liberty. That each should be kept strictly within their respective constitutional spheres, and, finally that he who would destroy the sovereignty of the states by consolidation, or the Federal Union by nullification, is a traitor to liberty, and deserves the universal execration of mankind.”
Richard E. Ellis, “The Union at Risk: Jacksonian Democracy, States’ Rights and the Nullification Crisis” (Oxford University Press, 1987), pp 121-122
Let me know if you have questions in the comments.