America was founded as a Federal Republic. This means our nation was designed to have two levels of sovereignty. The States which pre-date the central government and which created the central government is to be one level and the central government they created was to be the second. The separate States first combined to found a central government when they drafted and ratified the Articles of Confederation in 1781. This combination was strengthened and expanded in the writing and ratification of the Constitution in 1789. However, in both of these new beginnings it was always stated and assumed that the States were the building blocks out of which the whole was built.
The Anti-Federalists sought to safe guard the inherent rights of the Sovereign States in the face of a proposed national government which concentrated power and superseded the primacy of the States. The Anti-Federalists are often dismissed by those of succeeding generations who have been educated by the victorious philosophical descendants of the Federalists, as mere obstructionists and people of no-account. However, their ranks were filled by some of the greatest names of the Revolutionary times such as Samuel Adams, George Mason, Thomas Paine, and Thomas Jefferson.
Another well-known leader of the Antifederalists, Patrick Henry, questioned the very legitimacy of what are possibly the most famous words in the document: “We the People” when he said, “I have the highest veneration for those gentlemen; but, sir, give me leave to demand, What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.”
Once the Constitution was maneuvered through the ratification process most of the Anti-Federalists faded into the background. Forgotten were their war time services and forgotten were their warnings that a central government once established would inevitably grow in power to eclipse the States.
In the early days of the Republic the former Anti-Federalists attempted to keep alive the idea that it was the States which had created the central government and that the States therefore had the authority to determine if the central government had overstepped the authority which had been delegated to them by the States. They proposed to do this through a process known as Nullification.
Nullification is the process through which they believed a State could suspend a federal law within its borders. In opposition to the Alien and Sedition Acts of the Adams Administration Thomas Jefferson and James Madison first enunciated this concept in1798. The tactic was accepted as a legitimate tool of the States by the Hartford Convention in 1814. It was seen as a logical and legal protection against the encroachment of the central government upon the sovereign rights of the States.
The idea that a state or a combination of States could nullify what they perceived as unconstitutional laws passed by the central government which exceeded the delegated powers granted to it remained a point of contention until it reached a crisis in 1832.
The enactment of tariffs which were believed to be advantageous to the rapidly industrializing North and injurious to the agrarian South brought the question to a head. South Carolina led the way by adopting an Ordinance of Nullification which stated that the tariffs, “are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State.”
This was countered by President Jackson’s Proclamation Regarding Nullification, December 10, 1832. In this proclamation President Jackson stated, “I consider, then, the power to annul a law of the United States, assumed by one State, 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.”
Immediately after the President issued his proclamation Congress passed the Force Act. This law authorized the use of military force against any state resisting the tariff acts. The President being the man of action immediately sent warships to Charleston harbor and ordered the strengthening federal fortifications there. The situation staggered towards war as both the central government and the government of South Carolina prepared to dispute the Doctrine of Nullification on the field of battle.
It was at this critical juncture that Henry Clay who had not been able to find any other State willing to join South Carolina earned his reputation as the Great Compromiser. On the same day the Force Bill passed, Clay negotiated the passage of the Tariff of 1833. This law provided for the gradual reduction of the tariff over ten years until it reached the levels which existed in 1816. Jackson signed both measures thus priming and holstering the Federal power at one time. In response South Carolina repealed its Ordinance Nullification while at the same time reaffirming its belief in the legality of Nullification by nullifying the Force Bill. President Jackson knew he had won a victory and sought to move on by ignoring this face saving action.
After this crisis the issue of nullification died down. However, the belief that this was a viable and legal recourse for the States did not disappear, it instead evolved into the belief that the States which had created the Union could or should be able to nullify the union itself. This in turn led to the secession of Southern States beginning with South Carolina.
This next crisis precipitated the Civil War. This most deadly of all American wars destroyed the balance. The power of the States was crushed by the overwhelming power of the central government. Since that time the central government has grown, and grown, and grown until today it has become Leviathan. Not the sea monster referred to in the Bible but the soul crushing all controlling political and social government described by Thomas Hobbs.
Today this debate over the relationship between the central government and the States has resurfaced. As an administration moves aggressively to transform America beyond any semblance of a federal structure into a centrally-planned and totally controlled socially engineered society citizens from sea to shining sea are searching for ways to return to the limited government won by the Revolution and supposedly safe-guarded by the Constitution.
One of the most revolutionary proposals is a direct descendant of the Doctrine of Nullification. The Repeal Amendment is supported by citizens and their representatives in every State and in the Federal Congress. This proposed amendment states, “Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.” As of today, no State has passed the Amendment, and it has not gained enough support in Congress to advance past the proposal stage.
This proposed amendment is designed to restore the validity of the 9th and 10th amendments which have been fundamentally supplanted and submerged by the ever growing power of the central government.
The 9th Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The 10th Amendment states, “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.”
Unless we rebuild the reality of a balanced federal system we will soon find ourselves locked in the embrace of an all-powerful central government. This Leviathan will seek to regulate the smallest details of our lives and the spirit of totalitarianism we spent the last half of the twentieth century fighting will win by default as the change our fellow citizens voted for brings the death of hope.
Keep the faith. Keep the peace. We shall overcome.
(Photo: Pre-Revolutionary “LIBERTY” flag held by the Schenectady First New York Line regiment; this flag is held by the Schenectady County Historical Society)
Dr. Robert Owens teaches History and Political Science for Southside Virginia Community College. He has authored books, including The Constitution Failed and America Won the Vietnam War! Follow Robert at @Drrobertowens.