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.”