When States’ Rights were Progressive

As the proverbial blessing and/or curse foretold, we are living in interesting times. The Left finds itself rooting for executive-branch departmental bureaucrats and the Right launched a boycott of Budweiser. I don’t care how politically prescient you are–NO ONE saw this turn of events coming.

The #resistance to the Trump regime has also surprised–pleasantly so, however–in its vastness of scope and diversity of participation. What I’ve found particularly interesting, though, is the way in which tools and tactics seem to have been adopted contrary to what we’ve been historically conditioned to expect. We don’t expect hardcore Liberals cheering on mid-level EPA administrators and celebrating the independence of the intelligence community, because those haven’t been the tools of political engagement and protest that group has picked up, historically. I use the term “tools” purposefully here, because there has always been an array of particular tools available for the practitioners of protest and resistance. The conservative boycott of Budweiser is weird because it’s, well…a boycott of freakin’ Budweiser? From the Right? But it’s not weird at all in its use of the boycott, a tool which has been employed by Americans since the days of the Stamp Act. Boycotting Budweiser because Anheuser-Busch had the temerity to hint in a commercial that maybe we shouldn’t be assholes to immigrants is an act of protest from a mindset far different than the 19th-century abolitionists’ boycott of goods made from cotton produced by enslaved labor. But the tools each set of protesters used–the boycott and its concomitant ideal of consumer action–are identical. The boycott has been one of the most durable tools of political protest because it’s been effective for so many different groups in wildly varying contexts; it has a well-established historical track record.

So, too, has the tool we know as “states’ rights.” This ideology, this very particular interpretation of the federalism created by the Constitution, is not one with which Progressives tend to identify. Yet, here we see California’s state government asserting its right to resist certain policies–particularly those relating to immigration enforcement–emanating from the Trump administration. California’s government has framed its threats of resistance as necessary to protect the people of the state. In doing so, it has picked up a set of constitutional tools with a history that stretches back into the early nineteenth century.

Again, these are not tools that enjoy a very savory reputation in the Progressive community. We’ve seen states’ rights used as a cudgel, wielded by recalcitrant, racist regimes in the southern states against federal attempts to guarantee civil rights to African Americans and other communities of color. “States’ rights” conjures up images of Orval Faubus fulminating against the Eisenhower administration’s use of the National Guard to integrate Little Rock’s Central High School in accordance with the terms of the Supreme Court’s decision in the Brown case. We see George Wallace standing in the doorway of the bursar’s office at the University of Alabama promising “segregation forever.” We remember Virginia’s “massive resistance” to the Brown decision, and integration in general, which used every power of the state to thwart federal civil-rights initiatives, even if that meant shutting down every public school in the Commonwealth. States’ rights has been the discourse of paleo-conservatism in more recent times. It’s been the tool with which the far right, from state house to the Supreme Court, has tried to hold back the tide of the twenty-first century. Our inner mental voice probably pronounces the term “states’ rights” with a pronounced southern drawl.

But it has not always been thus. Eric Foner, the eminent US Historians, wrote an excellent piece a few weeks ago for The Nation that reminds us how the tools of states’ rights can be deployed to defend not white supremacy, but the rights and dignity of all. In “What the Fugitive Slave Act Teaches Us about How States Can Resist Oppressive Federal Power,” Foner points to the ways in which liberals and conservatives in our current times have typically looked at the nature of governmental power: “Progressives have long been accustomed to look to the federal government to protect individual liberties, while conservatives invoke states’ rights to oppose everything from voting-rights enforcement to environmental regulations.” But, he continues, “there is nothing inherently progressive about federal power, and in some circumstances local self-government can become a bastion of resistance to reactionary national actions.” Such was the case for those who resisted the kidnapping gangs and grossly illiberal and inhumane provisions of the 1850 Fugitive Slave Act by deploying the tools of the states’ rights tradition to defend local people against the unjust and unconstitutional (the Fugitive Slave Law denied jury trials and other rights of the accused) actions of the national government. In these times, Foner concludes, “Progressives need to rediscover the local power embedded in our Constitution.”

April, 1851, broadside warning Bostonians of the Fugitive Slave Act’s enforcers invading their city

This use of states’ rights, and their companion tactics of nullification (state invalidation of federal legislation) and secession, not to support slavery and racism but rather to resist it, was the subject of my Ph.D. dissertation, “Calculating the Value of Union: States’ Rights, Nullification, and Secession in the North, 1800-1848.”  As any historian well tell you (when they’re being honest, at least) it is SUPER COOL when the subject of their dissertation achieves relevance in a present-day context. So when I read about California’s state government saying thing that sounded an awful lot like threatening nullification of federal actions, I got really interested. History may not repeat itself, but it can often rhyme, and I feel like we’re seeing that here. Most US historians know that before the Civil War, nullification–and its enunciation via the language of states’ rights ideology–were famously embraced both in Thomas Jefferson’s and James Madison’s 1798 Virginia and Kentucky Resolutions (and their lesser-known 1799 sequels) and in the 1828-1832 crisis over South Carolina’s nullification of the protective tariff. On the surface, this seems to confirm the narrative of southern/slaveholding white supremacy using specific tools to prevent federal action. But the antebellum era was rife with examples of states’ rights ideology serving as the tool by which federal authority was resisted throughout the North as well.

In Thomas Jefferson’s first term as president, for example, a clutch of disaffected New England Federalists–including some pretty prominent figures who had once served in the Washington and Adams administrations–plotted to detach New England from the rest of the Union and create an independent “northern confederacy.” There were several factors that motivated this separatist movement, but chief among them was the expansion of slavery and what would become known as “the Slave Power” portended by the Louisiana Purchase. In the War of 1812, some of the same figures, aided by new converts to the anti-Jeffersonian/anti-southern-power cause, fomented nullification as part of a broad grassroots movement that culminated in the Hartford Convention of late 1814. If it hadn’t been hijacked by moderates at the last minute, the Hartford Convention might well have prompted a Nullification Crisis before the more famous one that erupted in South Carolina twenty years hence. This crisis, however, would have been informed by a desire to limit the reach and influence of slavery and slaveholders in the national government, not to sustain that power.

As slavery and territorial expansion became more and more intertwined in the American republic’s “manifest destiny,” opponents of slavery’s expansion and the concomitant strengthening of the Slave Power found in states’ rights ideology a set of tools possessing a degree of established legitimacy in the era’s constitutional/political discourse. Thus, in a nod to the 1798 Virginia and Kentucky Resolutions, Massachusetts’ state legislature could contemplate a set of resolutions hinting at secession should Texas be annexed into the Union in the 1840s. Radical abolitionists like William Lloyd Garrison and Wendell Phillips consciously invoked the legacy of New England’s separatist Federalists of the early 1800s in their indictments of the Constitution and Union as being fundamentally tainted by slavery and thus possessing no claim to a moral citizen’s allegiance.

But it was, as Foner’s article suggests, the Fugitive Slave Act was a watershed moment for the deployment of states’ rights ideologies in the North on a larger scale and with a higher degree of legitimacy than the tools had enjoyed prior to this moment. The draconian provisions of the law, its reach into the daily lives of a wide spectrum of northerners, and the blatant ways in which it tilted the scales in favor of the Slave Power all combined to spark a grassroots resistance that displayed the ways in which northerners could no longer write slavery off as a purely southern “problem.” Thus, sensational rescues (or at least rescue attempts) of accused fugitives tapped into a larger vein of localist politics to counter what were seen as unconstitutional and fundamentally unjust intrusions of national power. Perhaps the most clearly-articulated of these instances was in Wisconsin, where the 1854 rescue of the accused fugitive Joshua Glover landed abolitionist newspaper editor Sherman Booth in jail for resisting the Fugitive Slave Act. But a Wisconsin judge granted Booth a writ of habeas corpus and justified his decision by declaring the Fugitive Slave Act unconstitutional. The U.S. marshals, charged with upholding that law in general and the arrest of Joshua Glover in particular, appealed the decision to Wisconsin’s Supreme Court, which upheld both the lower court’s grant of habeas corpus and the reasoning behind it. Here, then, we have a northern state’s judicial branch (with the support of much of the state legislature, it should be noted) nullifying a federal statute, and doing so in language that could have been lifted from John C. Calhoun’s Exposition and Protest. The case of Abelman v. Booth came before the US Supreme Court, where in 1859, the Taney-led majority ruled against Booth, arguing that states did not have the right to invalidate federal indictments or convictions under federal law.* So here we have the Taney Court, upholder of a purely sectional agenda of slaveholders’ rights, arguing against states’ rights, in the same way it did in the more well-known Dred Scott case two years prior. The permutations and combinations of constitutional discourse in the late 1850s were amazingly complex indeed.

After the Civil War, in the contested, incomplete, and forcibly-overturned revolution that was Reconstruction, states’ rights ideology encountered another watershed moment. In contrast to the antebellum era, where the Slave Power dominated the apparatus of the national state, we see in the postbellum years the first time federal power was placed in the service of civil rights for more than just white citizens. And here, too, states’ rights ideology was a tool both available and useful–this time for white reactionaries who sought to resist what they saw as unjust federal intrusions into their god-given local prerogatives to subjugate, re-enslave, torture, and kill African Americans. And this is the deployment of states’ rights with which we tend to be more familiar today. But it should be clear that states’ rights acquired its character as a nearly universally-accepted idiom to be used in defense of racist regimes only when the federal government actually seemed motivated to uphold the promise of civil rights. The marriage of states’ rights and white supremacy was thus a marriage of convenience; racists did not truck in this ideology when it was used to resist the Taney Court’s diktats establishing judicial apartheid, for example. That this marriage lasted over a century is testament to the durability of white supremacy in the United States, not a priori racism in the localist strain of constitutional thought.

Now, however, we see the instruments of power and the apparatus of the federal state subverted once more in the service of a racist regime. As the Slave Power sent federal marshals into northern cities to hunt black people in the 1850s, today we see a barely-restrained ICE acting as judge, jury, and one day executioner towards humans who have been declared “illegal.” An attorney general with a political record that would make William Lowndes Yancey proud sits (for now) atop the Justice Department and has already made it clear he has no interest in placing federal power in the service of upholding civil rights. It is a time of resurgent white supremacist terror that receives winking approval from our nation’s elected leaders, and institutional restraints upon this perversion of our country’s ideals are either ignored or scoffed at. These are dark days, but there are tools by which federal power has been, and can continue to be, resisted. Extralegal activism and broad-based social justice movements have made it clear that our current regime does not enjoy majority approval, much less any sort of mandate that exists outside their fevered imaginations. But more formal constitutional tools are being picked up as well. The Sanctuary Cities movement. California’s flexing of its muscles and invoking states’ rights as a tool by which it claims it can shield its citizens from unconstitutional extensions of federal power. These are interesting times, indeed. A system where the locus of power resides in a constantly-shifting continuum of federal to local control has proven remarkably adaptable. An effective set of tactics, grounded in a particular use of constitutionalist discourse, was laid out by antebellum Americans resisting the abuses of the Slave Power and its federal lackeys. Now, the process by which that occurred is echoing into our present. And we seem to be finding out that, with apologies to Audre Lorde, perhaps there is a way the master’s tools can be put to use in dismantling the master’s house.


*My brief summary here doesn’t do full justice to this fascinating–and understudied–episode. For more, consult Michael J. McManus, Political Abolitionism in Wisconsin, 1840-1861 (Kent, OH: Kent State University Press, 1998) and H. Robert Baker, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War. Law, Society, and Politics in the Midwest series (Athens: Ohio University Press, 2007). By the way, even though Booth’s conviction was upheld, he was pardoned by outgoing president James Buchanan in early 1861.

[Image Credit: Wikimedia Commons]