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The Truth About States’ Rights
As the 2016 presidential campaign gets underway, we can expect the usual savage critique of any conservative who dares to advocate states’ rights, as Rick Perry tried to do in the last cycle. The unspoken premise of such attacks is that “states’ rights” is a philosophy born in the antebellum South to defend slavery. Ergo, anyone who supports states’ rights today must be a closet racist.
A 2013 New York Times op-ed by Michael C. Dawson, for example, declared that “since the nation’s founding, ‘states’ rights’ has been a rallying cry for those who wished to systematically disenfranchise and exploit large segments of their population.”
But what if the mainstream historians and commentators are all wrong? In the current issue of City Journal, I argue that the conventional narrative has it backwards: in fact, during the nineteenth century, “states’ rights” was more often invoked by northern abolitionists than by Southern slaveholders.
Before the Civil War, pro-slavery politicians had all the tools they needed at the federal level. The United States Constitution implicitly permitted slavery, while the “three-fifths clause” boosted the congressional delegations and Electoral College votes of the slave states. Furthermore, federal law guaranteed the return of fugitive slaves to their masters. In the District of Columbia — over which the federal congress had total authority — slavery remained legal until 1850, when it was finally abolished, but only in return for an expansion of slavery elsewhere.
The major conflicts that precipitated the war involved efforts by northern states to attack slavery by nullifying the federal Fugitive Slave Act, and asserting the right to manumit slaves in their territory: even slaves only temporarily passing through with their masters. It was the latter issue (slave transit) that was involved in the infamous Dred Scott case in which the Supreme Court issued a strongly nationalistic opinion, hostile to the northern states’ right to prohibit all forms of slavery within their borders.
Abraham Lincoln’s House Divided speech was a plea for states’ rights in the face of what Lincoln warned was the Supreme Court’s nationalization of slavery. “We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their state free,” said Lincoln, “and we shall awake to the reality, instead, that the Supreme Court has made Illinois a slave state.” As Law professor Paul Finkelman notes in An Imperfect Union, in the years before the Civil War, “the philosophy of states’ rights or state sovereignty was adopted by many northerners” seeking to arrest the spread of slavery. Even when the southern states seceded, their actions were usually framed as a protest against Northern nullification.
You can read more about the real history of states’ rights here.
Published in General
Certainly runs counter to rhe common understanding. It doesn’t help that Perry is governor of a former slave state. While the common understanding is often wrong it almost impossible to fight against, which means that it is often better to go around it by usinfg new terms. Instead of states rights maybe Perry should use words like Federalism, Constitutionalism, and localism.
Very good point.
And then there’s secession, the ultimate in state’s rights. At least some northern abolitionsists were all for it, as it would automatically nullify the fugitive slave laws. The masthead of William Lloyd Garrison’s abolitionist newspaper ran the slogan, No Union With Slaveholders!
If the South wouldn’t secede from the North, the North should secede from the South.
(If it had, can any sane person imagine the South making war to keep the North in the Union?)
Spot on. I discuss the Northern movement for secession in my piece. The abolitionists considered secession a duty!
The problem with words like “federalism” is that they have become so debased, they don’t stand for much any more. There are many liberals (at least in academia) who claim to support “federalism” — by which they mean “isn’t it great that the states play in role in implementing federal policies?”
That’s why I think it’s important to rehabilitate “states’ rights” as an honorable doctrine.
I’d say it’d have been decidedly less likely, but it rather depends on exactly who seceded. If it were more than just a few states — say, more than just New England — there’d have been the problem of the South being too poor and un-industrialized to have had a chance of mobilizing a winning army.
I personally think the phrase “states’ rights” is a misnomer.
It should be about “states’ jurisdiction”. After all, how can a state have “rights”?
Interesting and well researched article. But I still fear that when faced with facts and history most on the Left will end up saying, “Whatever. You’re still a bunch of racists.”
Hear! Hear!
“Jurisdiction” is too big a word. How’bout “choice”? The Left loves choice.
I think the more successful approach to the issue is one of individual liberty. Even crazy lefties want to be left alone. The distinction is that they want to be left alone to indulge vice while those on the right want to be left alone to explore virtue.
How about “bottom-up “, or “grassroots”, or “local”, or “community”?
A couple of points worth making;
1. Prior to the Civil War most of the secessionist movement were initiated by Northern states. During the War of 1812, the New England states held the Hartford Convention to consider formally seceding from the United States. Even during the Nullification Crisis, I do not believe South Carolina considered secession. Rather it was over their right to nullify Federal laws.
2. One of the reasons the Confederacy fired upon Fort Sumter was an effort to push the Upper South into the Confederacy. At the time of Sumter more slave states had chosen to remain in the Union than secede from the Union. (Arkansas, Delaware, Kentucky, Maryland, Missouri, North Carolina, Tennessee, and Virginia were still in. Alabama, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Texas were out.) The view of the then Confederate States was without at least Virginia and Tennesse the Confederacy lacked the industrial base to be a viable nation. They figured once shots were fired the Upper south would join them. (Half right – Delaware, Kentucky, Maryland, and Missouri remained in the Union, and only fraud brought successful ordinances of secession in Arkansas and North Carolina.)
Seawriter
What Seawriter says.
The BIG problem is that most Americans have only a vague understanding of our history. This is especially true concerning the basically libertarian nature of our original incorporation. People mostly wanted to be left alone. PERSONAL liberty, and that included the right to make money a question of property, were extremely important. So when states felt they were pressed into things that was against their best interests, their nape hair rose.
And Massachusetts was chief in this group.
I didn’t know about the Northern State’s efforts to secede prior to the Civil War, and I pride myself in being historically literate about the United States.
That being said, good luck getting this argument to fly with the general population.
Also, I do agree with the term “states rights”. All U.S. states have republican forms of government that have adequate procedures in place that the voters can influence. More than the federal government when you consider that many states have a referendum process.
States rights implies more liberty.
Point well taken. Prior to 1861 slaveholders were perfectly happy to wield federal power when it suited their purposes, and the South’s stranglehold on the Senate, the Supreme Court and a succession of Democrat presidents meant they got what they wanted from the federal government.
It is also interesting that prior to Windsor, when DOMA was under assault in the federal courts, liberals were happy to be highly situational “states’ rights” (“federalism” if you prefer) enthusiasts. I expect they are less sanguine about “states’ rights” now that federal power on the subject is squarely on their side.
“States’ bottom-up”? “grassroots rights”? huh?! Maybe just bottoms up with a relaxing beverage in the glass.
I wonder how much of this debasement is due to not having elected officials on the federal level fighting to maintain “federalism” as the Founders might have recognized the word? There seems to be no defense of how our system of government is supposed to work anywhere in DC regardless of Party.
Don’t forget the current string of states’ rights displays regarding marijuana. That too is an exercise of the wicked tactic on the part of the Left. <note the sarcasm> Throughout history, the use of the term “states’ rights” has been used when the opportunity suits the user and not out of some devotion to the ideology of Federalism, or what have you.
The success of the notion of states’ rights need not be a complex history lesson for the American voter. Most voters seem to be hardwired for this idea to begin with. I can’t tell you how many people I know who know absolutely nothing of the fight inside the Belt Way and a lot of times sound like Democrats when talking about certain issues, but in the abstract claim to want to be left alone by the government. In a sense, they are instinctively predisposed to the idea of states’ rights. It merely takes confident message from elected officials to spark that instinct.
Imagine if you will, when Gov. Brewer of Arizona had some backup from Senate and House Republicans when the state decided that they were going to enforce immigration policy on the state level? Think about how much more difficult the idea of suing the state would have been had there been a unified front against the usurpers in the White House. Would they still had sued? Probably, but there would have been on display for all to see the stark contrast between our vision and philosophy and theirs. Instead, we have a national GOP who is more interested in winning elections–as though the idea of standing up for Liberty is a losing proposition–and more interested in importing an underclass of people in massive numbers, aka amnesty. Just imagine if the GOP wasn’t so fractured when it came to what the national Party claims to stand for and what the rank and file who vote Republican want. Instead of saying “can’t” and thinking the American voter too stupid or apathetic to understand, how about trying to reach them instead of being afraid of what they might think of you? It’s just a thought.
When will you guys learn? They are going to say that about us no matter what. That’s all they have in their playbook. We should not cater our message to what THEY are going to say about us. Every time they call us racist, we should point out that they are the ones who support Planned Parenthood killing black children in the womb. It’s just that easy. Take the damned gloves off and quit being so bloody frightened by a bunch of feral animals masquerading as a political party.