As the government shutdown enters its second week, liberal commentators such as The Washington Post’s Colbert King have likened the political forces arrayed against the Affordable Care Act to a “New Confederacy,” akin to the slaveholding, secessionist Confederate States of America.
That’s not quite right: The occasion for secession in the 1860s was the election of Abraham Lincoln, not the passage of a bitterly contested federal law. If there’s an analogy between past and present, it’s not the shelling of Fort Sumter.
Instead, it’s an earlier political firestorm from the 1830s called the Nullification Crisis, which involved a controversial 1828 law that became known, in the fiery oratory of Jacksonian America, as the “Tariff of Abominations.”
The debates over Obamacare and the Tariff of Abominations emerge out of the same problem. Despite all the checks and balances embedded in our national government, it is inevitable that Congress will pass laws — and that presidents will sign them — that are detested by a sizable minority of the populace. When those laws subsequently pass judicial review, as the healthcare legislation did, the law is here to stay. Unless the losing side can subsequently secure a repeal of the legislation, the disaffected have no choice but to obey the law.
John C. Calhoun of South Carolina thought otherwise. Even as he served as Andrew Jackson’s vice president, Calhoun was a vocal defender of states’ rights, and a sophisticated exponent of what has become known as the theory of the concurrent majority. This idea predated Calhoun and the 1830s, but it acquired new levels of clarity in his hands. After Congress passed the infamous Tariff of Abominations in 1828, Calhoun devised a system by which a political minority could contest a law that had otherwise passed muster with all three branches of government.
The legislation significantly raised tariffs on various imported goods. While the new protectionist duties benefited Northern manufacturers, Southerners now had to pay more for textiles to clothe their slaves and for the tools to equip them. At the same time, by upsetting the balance of trade, the tariff lowered demand for cotton, the South’s staple crop.
In response, Calhoun anonymously wrote the famous “South Carolina Exposition and Protest.” In brief, he theorized that individual states that believed a law was unconstitutional could take it on themselves to call a special state-level convention to decide the matter. If a majority of those assembled — the “concurrent majority” — decided that the law was unconstitutional, citizens of the state would no longer be bound by it.
This idea was based in part on an earlier precedent from the 1790s, when Thomas Jefferson and James Madison wrote resolutions passed by both Kentucky and Virginia that effectively made the same claim involving the noxious legislation known as the Alien and Sedition Acts. Calhoun’s signal contribution was to devise an elaborate political theory behind nullification, as well as a practical guide for carrying it out on the state level (significantly, Madison refused to endorse Calhoun’s tactics).
Needless to say, Calhoun’s interest in protecting the rights of a political minority of slaveholders didn’t extend to the actual enslaved minorities who labored on his plantation. As the historian Daniel Walker Howe has observed, while Calhoun rightly retains a reputation as a brilliant political theorist, “his tragedy, and America’s, was that he turned his talents to immobilizing the federal government in the service of a slave economy.”
By 1832, the crisis that Calhoun helped create reached dangerous heights. A convention met in South Carolina and declared the tariffs null and void, despite a reduction in rates that Congress ratified to pacify the Southerners. The assembled group also summoned 25,000 state militiamen to counter federal forces. Worst of all, the convention vowed to secede if the federal government tried to stop South Carolina from flouting the law. On Dec. 28, 1832, Calhoun resigned as vice president and took a South Carolina Senate seat.
It was during this process that nullification went from being an abstract bit of political theorizing to an actual threat to the union.
Andrew Jackson would have none of this, particularly coming from his former vice president, whom he had grown to detest. Despite being a slave owner and Southerner himself, the president bluntly declared that the nullifiers were guilty of “treason” and warned that “if one drop of blood be shed there in defiance of the laws of the United States, I will hang the first man . . . I can get my hands on to the first tree I can find.”
Jackson wasn’t kidding. Memorably, when asked whether he thought Jackson was serious, an ally of the president replied that “when Jackson begins to talk about hanging . . . look out for ropes!” But Jackson’s response was equal parts bombast and crass pragmatism: As he rattled federal sabers, he also moved the collection of tariffs offshore, away from South Carolina ports, lowering the chance of a clash between federal and state forces. He simultaneously sanctioned a face-saving reduction in the tariffs, enabling the nullifiers to declare victory and go home. The most serious constitutional crisis before the Civil War had been averted.
The nation faces a crisis sparked by many of the same dynamics: An aggrieved minority hates a federal law and wants to do everything in its power to kill it. And it is within its rights to do so, up to a point. As Bloomberg View columnist Ramesh Ponnuru has rightly observed, it is neither shocking nor surprising that the Republicans have exploited loopholes in the law to delay its passage. While liberals may not like it, Republicans are playing by the rules.
But recent threats to shut down the government or, worse, default on the debt represent a revocation of the rules. In its nihilism, the tea party is closer in spirit to the nullifiers of the 1830s, who were willing to put the union at risk to defeat a national law.
“Let it never be forgotten,” Calhoun once said, that “where the majority rules, the minority is the subject.” Perhaps, but nullification and secession, like the tea party tactics of today, elevated the minority into a position of terrifying power. One tyranny simply replaces another.
These tactics have long-term costs. If the U.S. defaults on its debt because a handful of Republican legislators don’t like a law vetted by all branches of government, the damage will go beyond a much lower credit rating. Something else — a sense that the U.S. is, for all its differences, united — will have been lost.
Stephen Mihm, an associate professor of history at the University of Georgia, is a contributor to the Ticker.