Jefferson's "Rightful Remedy"

Brion McClanahan
Posted: Oct 19, 2015 9:20 AM
Jefferson's "Rightful Remedy"

Victor Davis Hanson has a strange and misguided infatuation with “Confederates.” In June, his widely read National Review piece on the Confederate Battle Flag equated the Confederacy to a “racist separatist group” like Benito Mussolini’s fascist Italy, and just this week, Hanson suggested that so-called “sanctuary cities” are the new “Confederates.”

Hanson’s overarching argument in both, and for that matter in much of his political treatises, is that “lawlessness”—which he defines as any threat to the political class or ruling order—undermines good government. To Hanson, there is no better example of lawlessness in America than the doctrines of state interposition (nullification) and secession.

Hanson is a very good military historian, perhaps one of the best in the modern era, but his understanding of the foundations of American government, the original principles of the “Union,” and for that matter a firm grasp of eighteenth and nineteenth century American political history lacks cogency. He often relies on half-truths and straw man arguments to prop up his claims.

For example, Hanson suggested that John C. Calhoun “declared…that federal tariffs should not apply to his state.” False. Calhoun and South Carolina, through a popularly elected convention of the people in 1832, insisted that the protective tariffs passed by Congress and signed by Presidents John Quincy Adams and Andrew Jackson between 1828 and 1832 were unconstitutional because they violated the “general welfare” of the Union and the uniform distribution of taxes among the States. They unequally benefitted one section (the North) and burdened the other (the South). Neither Calhoun nor the people of South Carolina said that all tariffs did not apply to South Carolina, only unconstitutional tariffs like the 1828 Tariff of Abominations and its successors. In fact, after the tariff was reduced, South Carolina rescinded its Ordinance of Nullification and began collecting the tariff.

He then suggests that nullification is the “illiberal pedigree” of the Confederacy. False again. Nullification was used before the American War for Independence to resist unconstitutional acts by the British Parliament. The famous Suffolk Resolves of 1774 (from Massachusetts) declared that, “That no obedience is due from this province to either or any part of the acts above-mentioned [Intolerable Acts], but that they be rejected as the attempts of a wicked administration to enslave America.” Further, the Resolves urged all Massachusetts law enforcement officials to “refuse to carry into execution the orders” of the now illegal courts of Massachusetts. That is nullification. The First Continental Congress later adopted a modified version of the Resolves.

Of course, the British would call this lawlessness, as they did the first American war of secession. The founding generation considered the “rights of Englishmen” to be paramount to supposedly supreme but unconstitutional and illegal acts of Parliament. The British also argued that the American War for Independence was little more than a cover for the protection of slavery. Good thing the Limeys across the pond did not get to write our history books or Hanson would be forced to conclude that the Stars and Stripes represents a “racist separatist group.”

His contempt for nullification also ignores that when the Constitution was ratified in 1788, proponents of the document swore that should the general government exceed its delegated authority, the States, as Roger Sherman of Connecticut said, would be “powerful enough to check it.” How so was the question. The Tenth Amendment offered the solution. Notice Sherman did not say the federal courts would be powerful enough to check it, but the States.

Nullification was first introduced as an actionable doctrine by Thomas Jefferson and James Madison in 1798 through the Virginia and Kentucky Resolutions. They targeted the illegal and infamous Sedition Act of 1798, a law that any clear thinking person both then and now could see violated both the First and Tenth Amendments. I would surmise that both Jefferson and Madison knew something about the nature of the Union and American government.

That said, Hanson is correct that “sanctuary cities” are illegal. The Constitution delegates the authority to set “uniform rules for naturalization” to the Congress in Article 1, Section 8. A State or a city cannot ignore a constitutional law, only unconstitutional acts. Federal immigration law is not unconstitutional and thus should be enforced.

The same cannot be said for “marriage equality.” The Constitution does not grant the general government any authority over marriage. That has long been strictly a State issue. The federal courts have overstepped their boundaries, and thus Kim Davis followed the correct constitutional path in ignoring an unconstitutional federal ruling. Hanson incorrectly claims that sanctuary cities and Kim Davis are two sides of the same coin. Far from it.

Federalism and the original Constitution are on the ropes (if they are not already knocked out) in the American polity, and as conservatives we need to be consistent in our application of the original principles of American government. Rand Paul was correct in the last presidential debate that so many of our so-called “conservative” minds have adopted policies and taken positions on a variety of issues that violate the original Constitution they so stridently say they defend.

Much of the legislation passed by Congress today would never have been considered constitutional by the founding generation. History has given us clues as to what would be their response. Jefferson called it the “rightful” remedy. We call it nullification.

It is neither lawless nor illegal, but a proper defense of the “ancient constitutions of our fathers” and the “rights of Englishmen” passed down to Americans. The author of the Suffolk Resolves, Joseph Warren, said, “That it is an indispensable duty which we owe to God, our country, ourselves and posterity, by all lawful ways and means in our power to maintain, defend and preserve those civil and religious rights and liberties, for which many of our fathers fought, bled and died, and to hand them down entire to future generations.” We are their posterity and we should heed his call.