States' Rights; G. Healy

States'Rights Revisited by Gene Healy L amenting the Supreme Court's recent batch of pro-federalism decisions, the New York Times termed the Court's newfound affinity for states' rights "Supreme mischief," "deeply disturbing" to right-thinkers every where. One expects such talk from dedicated cheerleaders for centralized power. What's more disturbing, however, is the extent to which the Times's perspective has gained cre dence among advocates of limited govern ment. Modern libertarians, rightly concerned with what the Institute for Justice's Clint Bo lick has termed "grassroots tyranny," ridicule and disparage the time-honored doctrine of states' rights. It's understandable that the under-informed general public associates states' rights with slavery, Jim Crow, Bull Connor's police dogs, and "segregation forever." But classicalliber als ought to take a longer view. "States' rights" merely stands for the propositions that (1) the Constitution should be interpreted strictly with regard to the narrow set of enu merated powers granted the federal govern ment; and (2) that the states can nullify or obstruct federal actions that violate the Con stitution. As such, the doctrine has a long and honorable pedigree among advocates of limit ed government. States' rights, in the view of classical liberals like Lord Acton, was no mere excuse for states to violate the rights of their citizens. Rather, the independence of the states in the period before the Civil War Gene Healy is a recent graduate of the University of Chicago Law Schoo!.

served as an effective check on federal aggrandizement. As Acton put it, "Centraliza tion finds a natural barrier in the several State governments." Modern libertarians tend to have a different perspective, believing that strong federal oversight is indispensable to securing liberty. For example, John McLaughry, head of the libertarian Ethan Allen Institute, says the doc trine of states' rights is little more than "a hoary legacy from the days of human slavery." This view rests on a tendentious version of history, one quite at odds with Lord Acton's, to the effect that in the nineteenth century, state governments were a more serious danger to individual freedom than the federal govern ment. (That perspective is perhaps best encap sulated in Bolick's Grassroots Tyranny [1993]. See also the Civil War history offered in "Reviving the Privileges or Immunities Clause" by Kimberly C. Shankman and Roger Pilon; Cato Policy Analysis No. 326, at www.cato.org.) The true story is more complicated, and, from a libertarian perspective, far more favorable to the states than the federal gov ernment. During the nineteenth century, the people, through the agency of their respec tive states, repeatedly and effectively resist ed federal tyranny. A brief historical survey will make that clear. It will also, I hope, sug gest some reasons why modern libertarians should rethink their hostility to states' rights.

15 16 THE FREEMAN/IDEAS ON LIBERTY • DECEMBER 1999 The "Reign of Witches" and the Kentucky and Virginia Resolutions The nation was still in its infancy, and the Bill of Rights not a decade old, when the Fed eralist party flagrantly violated the First Amendment with the Sedition Act. The Act criminalized uttering or publishing anything of a "false, scandalous, and malicious nature" with the intent to bring the government or its officers "into contempt and disrepute." Any one found guilty could be fined up to $2,000 and imprisoned for two years. The Federalists promptly put it to use in a crackdown aimed at their political enemies. One Luther Baldwin was convicted of vio lating the act for little more than the rough expression of admirable libertarian sentiment. Stumbling into a Newark, New Jersey, saloon, during a parade for President John Adams, Baldwin asked what all the ruckus was. A cannon salute for President Adams, he was told. Baldwin exclaimed that it was all the same to him if the cannon was shot up Adams's rear end. Other convictions were less amusing. David Brown of Dedham, Massa chusetts, was sent to jail for 18 months for refusing Supreme Court Justice Samuel Chase's order to name associates who shared Brown's Jeffersonian views. Congressman Matthew Lyon of Vermont, an Irish-born republican radical, was imprisoned for criti cizing President Adams's alleged "continual grasp for power." While in jail, Lyons was overwhelmingly reelected to his seat.

Vice President Thomas Jefferson saw the Federalists' tyrannical rule as a "reign of witches." He and James Madison determined to oppose the Alien and Sedition Acts through the agency of the state governments of Vir ginia and Kentucky. As historians Stanley Elkins and Eric McKitrick put it in their book The Age ofFederalism, "the protest was taken up in a formal way by no less a power than the constituted legislatures of two states against an act of the national government." Acting in secret, Jefferson drafted the Kentucky Reso lutions, Madison, the Virginia ones. Each articulated the "compact" theory of the Union: that the states are equal partners in the federal union, each with the power to interpret the Constitution and thwart federal abuses thereof. The Virginia Resolutions warned that "a spirit has in sundry instances, been manifest ed by the Federal Government ... to consoli date the States by degrees, into one sover eignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy." The states, declared the Resolu tions, "have the right and are in duty bound to interpose for arresting the progress of the evil." Jefferson's Kentucky Resolutions urged the other states to join Kentucky "in declaring [the Alien and Sedition] acts void and of no force."

With Jefferson's accession to the presiden cy, the "reign of witches" passed, as Jefferson ended prosecutions under the Acts. But the compact theory of the Union lived on, to be invoked again in the service of individual rights. Nullifying the Tariff of Abominations During the nullification "crisis" of 1828-33, the power of the states was again employed to counter federal abuses. In For Good and Evil: The Impact of Taxes on the Course of History, Charles Adams describes the disproportionate burden that the federal tariff imposed on the Southern states: "The South exported about three quarters of its goods and in turn used the money to buy European goods, which carried the high import tax." Most of the revenue was spent on internal improvements and other federal pro jects in the North. Understandably, the South chafed at the burdens imposed by the tax system. Some of her most prominent political leaders argued that the Constitution granted no power to tax for the purpose of protecting industry, as opposed to raising revenue. With the tariff of 1828, the "Tariff of Abominations," the battle was joined. The South Carolina legislature denounced the tariff, which brought duties to their highest pre-Civil War level, as "uncon stitutional, oppressive, and unjust."

Playing Jefferson's role of 30 years before, Vice President John C. Calhoun secretly wrote South Carolina's Exposition and Protest, in which he outlined the doctrine of nullification. According to Calhoun, state conventions, the same bodies that had ratified the Constitution, could nullify federallegisla tion that they considered to be in violation of that document. The federal government there upon could only enforce the law if it secured a new constitutional amendment through the approval of three-fourths of the states. Calhoun intended the doctrine as a moder ate middle position short of the extreme rem edy of secession. But soon, a military clash seemed imminent, as President Andrew Jack son denounced nullification and privately swore to hang Calhoun. In the end, though, South Carolina's defiance forced a partial climb-down by the feds. Senator Henry Clay of Kentucky helped usher through a bill securing a 20 percent reduction in the tariff.

Disputes over the unjust federal revenue system would playa central role in bringing about the Civil War (contrary to most con temporary accounts, which emphasize slavery to the exclusion of almost everything else). The centrality of the tariff issue is revealed in Lincoln's First Inaugural, in which he dis claimed any intention to interfere with slav ery, but was adamant about collecting federal revenue via the tariff. Republican corporate statism and Northern manufacturing depend ed on the Union and a high tariff. As a trou bled editorialist in the March 18, 1861, BostonTranscriptput it: "The difference is so great between the tariff of the Union and that of the Confederated States, that the entire Northwest must find it to their advantage to purchase their imported goods at New Orleans rather than at New York.... [The government] would be false to all its obliga tions, if this state of things were not provided against."

Personal Liberty Laws Ironically, the controversy over fugitive slaves would find Southerners clamoring for a STATES' RIGHTS REVISITED 17 John C. Calhoun (1782-1850) strong federal role and cursing the doctrine of nullification. In his Battle Cry of Freedom: The Civil War Era, historian James M. McPherson notes a tension in Southern appeals to states' rights before 1860: "On all issues but one, antebellum southerners stood for state's rights and a weak federal govern ment. The exception was the fugitive slave law of 1850, which gave the national govern ment more power than any other law yet passed by Congress." The South's deviation from principle on this point stemmed in part from economic motives: the federal govern ment's assistance in recovering escaped slaves made the peculiar institution more secure. But those Northerners who opposed slavery fought back with a states' -rights-based resis tance to the tyrannical and unjust fugitive slave laws.