State of Rebellion: Can Tennessee Really Nullify Federal Law?

What we learned, or perhaps didn't learn, in 1832

There's an old word that's been getting a workout more in the last four years than it has since before the Civil War, especially here in Tennessee. Nullification is the doctrine that a state can "nullify" any federal law it disagrees with, canceling the implementation and enforcement of the objectionable law within the sovereign state.

Surveying bills and newspaper accounts, one of the nation's hotbeds of 21st-century nullification would seem to be Knoxville. Our area's most famous state legislator, Sen. Stacey Campfield, is a standard bearer. He as well as Knoxville Rep. Bill Dunn, plus area Sen. Frank Niceley, have all supported extraordinary bills to "nullify" federal initiatives, especially those having to do with the Affordable Care Act, gun-control legislation, and the National Defense Authorization Act.

Niceley has even proposed nullifying the United Nations within the state of Tennessee. And Campfield has proposed that federal staffers attempting to enforce nullified federal laws be arrested.

Not all local Republicans follow their legislators' bold philosophical adventures, but some states-rights conservatives are impressed with their passion. Lt.-Gov. Ron Ramsey, speaker of the state senate, remarked a few weeks ago that "if you know your civics," you know it's reasonable and worthwhile for state legislatures to resist federal mandates, because federal authority rests on state authority.

How far can they get with all this? As it turns out, the closest any state has ever come to nullifying a federal law was South Carolina, right about 180 years ago. And though the drama played out between Columbia, S.C., and Washington, D.C., with some further tense days in Charleston Harbor, several Tennesseans were central to the problem and its resolution. One was a notable Knoxvillian.

***

Having missed Ramsey's civics lesson, I called a fellow who's a national expert in the subject of nullification. Professor Daniel Feller invited me to come over and chat. I didn't have to go far; his office is just about a 10-minute walk from downtown.

The most medieval-looking structure in town that's not actually a church, with Gothic stonework and stained class and a central tower that's castellated, ideal for archers in case of a catapult siege, the 80-year-old Hoskins Library is a modern fortress built as if to defend collected knowledge from barbarian hordes. No longer the University of Tennessee's main library, not part of a typical student's day, Hoskins is still home to the university's presidential papers projects.

Inside, I climbed the worn old stone steps to the second floor, where the ceilings are vaulted, and contain advice about truth and wisdom in stenciled pastels. The main room—the room that used to have the card catalogue when I was a student—would have been completely empty and contemplatively serene if not for the platoon of soldiers in camouflage, wielding black M-16 combat rifles. Were they a modern elaboration of the Gothic defensive motif? Guarding the storehouse of knowledge that is UT's presidential-papers projects? Or maybe a tea-party militia invading it?

As I walked by, quickly, I noticed the automatic weapons seemed to lack actual moving parts. As I later learned, the UT ROTC practices in the old library on Tuesday and Thursday afternoons.

The world headquarters of the Papers of Andrew Jackson, the first and only attempt to publish all the documents associated with the seventh president,looks no more momentous than an ambitious attic-cleaning project. There are a couple of old-fashioned wooden card-catalogue cabinets; a colorful old gazetteer is open to a map of Texas. But mainly there are papers. These rooms are cluttered perpetually. There are hundreds of boxes of photocopies of letters and speeches. When you've got tens of thousands of papers, there's no substitute for just laying them out and putting them in order, trying to make sense of them, so they can assemble them in reasonable order in the next volume.

The business of collecting all the papers of any U.S. president is never a tidy business, and the era of Tennessee's first president was especially messy, an era of back-stabbings and threats and vengeance and disappointed alliances.

Most of the papers in here are photocopies, here just for the words and sentences on their pages. Some of those words are the sorts of words you don't see anymore, like poltroon and gasconade and nullification. Actually, as we've mentioned, that last one has made a revival. Maybe the others will, too.

The staffers are expecting page proofs of their 1831 volume any day. For now—no time to wait—they're moving on to 1832. That's the year that's spread out in the middle of the room. It's their current project. And 1832 may be the best year in American history to study the subject of nullification. It's the only year any state has ever formally nullified a federal law.

Dan Feller looks like a modern guy, casually dressed, in sneakers. He hikes a lot, and if you press him he's a trove of lore about 1960s rock 'n' roll. But every day, he spends several hours in 1832. He may know the year 1832 better than anyone on the continent.

There was a particular crisis that year, as one state decided it didn't like a recent federal law, and chose not to obey it. The state was South Carolina, home of Sen. John C. Calhoun.

***

The tariff, and why South Carolina came to hate it, is not a quick study. In those days before the income tax, the tariff was the United States' main source of revenue. It was a tax on imported goods, from raw materials to machinery to clothing. The tariff raised money, for one thing, for the young republic's basic needs, which were pretty simple in those days: defense and some road and canal projects.

But the War of 1812 had raised some anxiety about the balance of trade. The Americans had won that war with major help from Gen. Andrew Jackson, and an assist from a European distraction named Napoleon, but the fact was that even as the United States was at war with England, the country was in some ways economically dependent on England, especially in the realm of manufactured goods.

America was mostly an agricultural nation, and its industry lagged far behind. To encourage it, legislators chose to adjust the tariff to boost manufacturing by making British manufactured goods more expensive in America, American industries could use the advantage to grow and eventually become more competitive.

The 1828 tariff was passed during the latter days of the John Quincy Adams administration, but cobbled together mainly by Congress. It was the one that Calhoun and South Carolina ultimately found intolerable. The sectional anti-tariff rationale was that most factories were in the northeast. South Carolina's economy was almost entirely agricultural, rice and cotton, with more and more emphasis on the latter. No other country was even proposing to import cotton to the United States, so cotton growers got no protective benefit from the tariff. However, they did need to buy European clothing and machinery, therefore had to pay a surcharge for those things.

It sounds like a primarily economic complaint, but Feller says the tariff was far too complicated to be a credible north-south division—pro-tariff in the North, anti-tariff in the South. Boston shipping concerns opposed the tariff, too, while Louisiana sugar planters liked the tariff very much because it protected their product from Caribbean imports. The tariff was popular in Kentucky, too, were some capitalists were trying to develop manufacturing. Tennessee, Feller says, was divided on the issue.

Feller says it's impossible to separate outrage about the tariff from anxiety about the subject of slavery. Part of it was that planters clothed their slaves in cheap imported woolens, and didn't like paying the surcharge. But Feller says Calhoun and his allies manipulated the tariff as a wedge issue, because they wanted to establish a precedent for anticipated limitations on slavery.

Forcing slavery into the issue so early might sound like revisionism, but the record makes it sound as if Calhoun would have agreed. In September, 1830, Calhoun wrote, "I consider the tariff act as the occasion, rather than the real cause, of the present unhappy state of things. The truth can no longer be disguised, that the peculiar domestick institution of the Southern states...has placed them in regard to taxation and appropriations in opposite relation to the majority of the Union, against the danger of which, if there be no protective power in the reserved rights of the states, they must in the end be forced to rebel."

The "peculiar domestick institution," of course, was the common euphemism for slavery. Outright abolitionism was in its infancy, but as one Northern state after another abolished slavery, Southern slaveholders were getting nervous, especially the states like South Carolina in which slavery was so prevalent that slaves outnumbered whites. To Calhoun, the tariff issue was a shot across the bow,

Jackson, a slaveholder, was no abolitionist, but neither was he a fiercely doctrinaire pro-slaver. Jackson was an old ally of Calhoun's—Calhoun was, in fact, his vice president—but the president didn't understand Calhoun's fury.

According to Feller, Jackson's point of view was one most historical economists would agree with: "You on both sides are overstating the importance of the tariff. You in the South, the tariff is not the source of all your woes. You in the North, the tariff is not the source of all your prosperity. Why don't you cool down a bit?"

An 1832 lower-revenue tariff made things a little easier on the South. "Some Southern politicians regarded the 1832 tariff as a move in the right direction," Feller says. "The South Carolinians decided to regard it as proof that all hope was gone."

South Carolina's Legislature called for a constitutional convention to nullify the federal tariff. To Feller, that's a basic fact modern legislators have forgotten. Even by Calhoun's extreme state's-rights philosophy, state legislatures can't nullify federal laws by themselves. South Carolina called for a quick popular election of a group not dependent on the state Legislature, a nullification convention, which met in Columbia in December, 1832. They saw it as their right, based on the 10th amendment to the U.S. Constitution: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Calhoun's theory of nullification, the only one that has been tried in American history, is that rejecting federal law demands a direct appeal to the people, by way of a state convention.

Feller says it gets back to who established the U.S. Constitution. "It was ordained by, according to its own stipulations, the people of the separate states, acting in their sovereign capacity through a convention," says Feller. "So the theory of nullification, and in fact the theory of secession—they both rest on exactly the same theory—is that the party that ordained the government is the party that is the ultimate authority on what they ordained. That means two things. That means first, if there is a question of interpretation, they're the final judge of that. The second thing it means is that if you ordain it, you can un-ordain it. And that's secession.

"And this is why Mr. Ramsey needs a civics lesson; all these people need a civics lesson. Nullification and secession rest on the doctrine of state sovereignty. But that does not mean sovereignty of the state government. It has nothing to do with the state government. When Ramsey said that the states created the United States Constitution, he was right, but ‘states' does not mean the state government. The Constitution says it will go into effect when it is ratified by conventions. Not by state legislatures."

Feller lets that sink in, and, pulling a thick tome off a shelf, reads some choice passages from South Carolina's "Ordinance of Nullification."

"According to the theory of nullification, according to the only theory of nullification that anyone has ever claimed had any validity," he says, "it has to be done by a state convention. To allow it to be done by a state legislature means that the state legislature is assuming sovereign powers. Which means you're denying those sovereign powers to the people of the state. And that's a greater act of usurpation than anything anybody is accusing Congress of. You're making the state government the judge of its own powers and the judge of another government's powers. And the whole theory of nullification, the whole justification for nullification, is that the people are sovereign. As a matter of fact, the theory of the United States Constitution is that the people are sovereign. And that only the people have the authority to make and break governments."

For Niceley to nullify a federal gun law, for example, it would require a nullification convention, assembled of delegates elected by a special statewide election.

And then, if he does it all correctly by the Constitution, history suggests the result could well be war.

The other theory of nullification, the one held by Jackson and most constitutional scholars since, is that nullification is unconstitutional to begin with.

Today, there's much fevered speculation about what the Founding Fathers intended. During South Carolina's nullification crisis, they didn't have to go very far to find one still handy. James Madison, who presided over the U.S. Constitutional Convention in Philadelphia in 1787, suffered from rheumatism and rarely left his Virginia home. He didn't insert himself into the public debate. But his mind was still sharp.

"The strange doctrines and misconceptions prevailing in that quarter [South Carolina] are much to be deplored," the octogenarian statesman wrote in a letter in 1831. In 1832, Madison evoked another Founding Father. "It is remarkable how closely the nullifiers who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them."

***

Calhoun resigned his vice presidency over the issue, leaving a vacancy not only in that office, but in a more important office traditionally held by the vice president, that of president of the Senate, an important organizational post. If there's no vice president, the Senate picks someone to serve that purpose for the balance of a presidential term. To replace Calhoun, the Senate chose one of their own, a Knoxvillian named Hugh Lawson White.

He played a role in averting the crisis. Hugh Lawson White may be the most powerful politician who has ever lived in Knoxville, but we have a blind spot for his era, the era of the U.S. Bank, the tariff, nullification.

His father James, who built a small log fort and a mill, is famous in modern Knoxville, the honoree of a parkway. Nothing is named for Hugh Lawson White. A state historical marker in the downtown graveyard where he's buried mentions several of his esteemed neighbors, founders of one local thing or another, but does not mention the former president pro tempore of the U.S. Senate, and one-time candidate for the U.S. presidency.

Hugh Lawson White spent a long career in Knoxville as a soldier, a lawyer, a banker, a justice on the state supreme court. He married Elizabeth Carrick, daughter of the founder of the college that evolved into the University of Tennessee. Though from a Presbyterian family, and not much of a churchgoer at that, White helped found Knoxville's first Methodist church. In 1825, the state Legislature picked White to fill the U.S. Senate seat that his friend Andrew Jackson vacated. White's gravestone hails him as "The Just," but the severely thin White was known on Capital Hill as "The Skeleton." He was respected and admired, if not beloved, in Washington. Aloof, intellectual, perhaps humorless, White had a reputation for logical calculations and for seeing through schemes.

White's no paragon of progressive thinking. Perhaps no one born in 1773 is likely to impress us with his sense of racial justice. White defended states' rights, including states' rights to permit slavery. He offered tight legal rationales for slavery, and for Indian removal.

In 1832, even those politicians who might have quietly questioned the peculiar institution would not have said so aloud. In Tennessee, abolitionists were almost completely absent in public life. Our elected representatives appeared along a complex spectrum that ranged from tolerating slavery to boosting slavery, charging it forward into the territories. White's point of view was that of a logician: slavery was a reality, "right or wrong," and whether it's maintained was up to the states.

White was, by the standards of white Southern politicians in the 1830s, a relative moderate on the issue. And in the days when Tennessee was still arguably the "West," White and other Tennesseans did not necessarily think of themselves as a Southerners.

Still, White opposed the protective tariff, and had considered both Jackson and Calhoun friends and allies. In 1831, Jackson offered White the coveted office of Secretary of War. White turned the president down, pleading the recent death of his wife, not to mention some of his children. It was an extreme era in many respects; Elizabeth Carrick White had actually died at Natural Bridge, Va., in the carriage on the way from Washington to Knoxville; the image of Sen. White, the Skeleton, driving the carriage the rest of the long way to Knoxville, with his dead wife as his passenger, can haunt historians.

Spurning Jackson's high offer was one early sign of a rift between the two. White showed an independent streak Jackson did not admire in his allies.

President Jackson's response to the Columbia convention's Ordinance of Nullification was quick and thorough. In a special proclamation in December, 1832, Jackson declared that state nullification of federal laws was not constitutional in the United States, even when accomplished by popular convention, and would not be tolerated.

"If this doctrine had been established at an earlier day, the Union would have been dissolved in its infancy," Jackson said. "I consider, then, the power to annul a law of the United States, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was formed, and destructive of the great object for which it was formed." If federal laws are resisted by arms, Jackson declared, it's treason.

Jackson, an attorney himself and in fact a former state surpreme-court justice, had expressed his opinion. Jackson, the soldier, also responded.

South Carolina had called for 10,000 soldiers to serve as a "State Guard" to protect their interests against federal law. The president asked Congress for a Force Bill, to allow the use of U.S. military force against South Carolina, to resist nullification. Though White criticized the measure, he finally voted for it. White and Tennessee's other senator, Felix Grundy of Nashville, were two of only six Southern senators who supported Jackson's extraordinary measure.

White would later say that he voted for the Force Act "as a decision merely that the government had the power to execute its laws. I never intended it should operate or actually be put in force against any of my countrymen who happened to differ from me in opinion, and who are as honest and conscientious in their opinions as I am in mine. And having voted for it, I will afford every opportunity to legislation in my power, to prevent its effect."

And, in the Senate, White went to work.

***

Jackson planned for 200,000 troops to be ready to invade the Palmetto State. That's remarkable in itself, and not just because Jackson considered South Carolina his birthplace (South and North Carolina still argue about that). Nullification allies joked that it would take them months to get to the border, because they'd have to pass through nullification-friendly states.

It's not at all clear that Tennessee was one. In early January, 1833, Greeneville attorney and Tennessee state Sen. James Wyly wrote a letter addressed to both Congressmen James K. Polk and James Standifer—the latter was a close ally and admirer of Sen. White.

"Mr. Calhoun will have to live under the administration of Gen'l Jackson...or leave the United States," Wyly wrote. "If he should choose the latter, I don't believe there would be any killing grief in his departure. He is as politically defunct as Aaron Burr, than whom, in principle, is not his superior." Wyly remarks that South Carolina was calling up a "state guard" of 10,000. "What for? to resist the union. How ridiculous."

What Wyly adds next is probably the reason his letter appears in the Tennessee Historical Quarterly.

"The old chief [Jackson] could rally force enough if necessary, upon two weeks notice from other states, to stand on the Saluda Mountain and piss enough to float the whole nullifying crew of South Carolina into the Atlantic Ocean."

The Saluda Mountain is on the border between North and South Carolina, upstream from Columbia, the capital. Greeneville's gentleman lawyer added a parenthetical: "I ask your pardon for the language, but I know of no other word so appropriate to connect with nullification."

State Sen. Wyly continued, "I presume [SC] Governor Hamilton has his militia in proper training. It will be a complete army of Gentlemen, each furnished with a servant to help his master the soldier, on and off his warlike steed. This would be an indispensable requisite, for at least one half of the South Carolinians are unable to get on their horses, with one foot in the Stirrup..."

With the Force Act in hand, Jackson sent U.S. warships into Charleston Harbor. Twenty-eight years before the shelling of Fort Sumter, it seemed the closest the United States had ever come to civil war. One of the officers of the USS Natchez, anchored in the harbor with cannons at the ready, was a Knox County native, 31-year-old first lieutenant named David Glasgow Farragut.

***

In Washington, Henry Clay worked up a compromise proposal. As Senate president pro tem, White personally assembled a seven-member committee to hash it out, and it was a committee to end all committees, including several of the giants of the era: Daniel Webster of Massachusetts, Henry Clay of Kentucky, and John C. Calhoun himself.

White also appointed one young Delaware senator, John Clayton, who, though a staunch opponent of nullification, was also a known enemy of President Jackson.

Old Hickory called White to his office to demand that Clayton be removed from the committee. White refused. Infuriated, Jackson called White's decision to keep Clayton on the committee a "direct insult."

But White had more control over the Senate committee than Jackson did. It met for days, and emerged with the document known as the Compromise of 1833. It called for a gradual reduction of the tariffs South Carolina had objected to, over a period of 10 years. It was not the minimum South Carolina had demanded, but it was enough for Calhoun to save face and go home. Some historians who've made a career of studying the issue, like University of Kentucky scholar William Freehling, observe that the Force Bill may have been at least as relevant to the Union as the compromise was.

How much White was responsible for brokering the compromise tariff deal isn't obvious—it was mainly attributed to Clay and Calhoun—but Virginia Congressman Henry A. Wise later referred to White, "without whose aid the compromise act never could have become a law—without whose patriotism and firmness there would have been a civil war upon a sovereign state, and upon the Union.... He muzzled the bloodhounds...and gave peace to a distracted people."

The rift between White and Jackson widened in years to come, especially after White accepted the nomination of some Jackson opponents, including John Bell and Davy Crockett, to run for the presidency in 1836 against Jackson's favorite ally, Martin Van Buren. Young Abraham Lincoln supported White's campaign. Calhoun did not.

Jackson was known for his temper, but his 1837 farewell address sounds thoughtful and firm, and refers heavily to the crisis of four years earlier. "Unconstitutional or oppressive laws may no doubt be passed by Congress, either from erroneous views or the want of due consideration.... But until the law shall be declared void by the courts or repealed by Congress, no individual or combination of individuals can be justified in forcibly resisting its execution. It is impossible that any government can continue to exist upon any other principles. It would cease to be a government and unworthy of the name if it had not the power to enforce the execution of its own laws...."