The Untold History of Nullification: Resisting Slavery

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Last December,
when Tennessee Rep.
Susan Lynn
, R-Mount Juliet, said she would introduce legislation
which would declare null and void any federal law the state deems
unconstitutional, some people were horrified. Rep. Lynn was specifically
targeting the health-care reform legislation that was pending at
that time. But the reaction that many people had to her language
was not an expression of their support for Obamacare.

Too many Americans
hear the terms “states’
rights
” or the word “nullification
and immediately think of racial prejudice, Jim Crow laws and school
segregation. Honestly, if all I had to rely on was what I remember
being taught in public school, I would probably tell you the history
of it all went like this:

The theory
of nullification was first invented in the 1800s’ by advocates
of slavery. They used nullification of tariffs as a test run in
the 1820s. Of course, what they really had in mind was maintaining
the institution of slavery against any possible attempt by the
federal government to abolish it. Then America fought the Civil
War in order to end slavery, but the ideas of states’ rights and
nullification were later revived in the 1950s’ by belligerent
white southerners in an attempt to block the racial integration
of schools. The Civil Rights Movement started and the feds had
to step in and force the southern states to treat everyone equally.
THE END.

That’s a rough,
abbreviated version of the narrative that was handed to me, but
it gives you an idea of what many Americans think
they know about states’ rights and nullification. Fortunately, thanks
to people like Tom Woods,
Thomas
DiLorenzo
, and many others, I know today that this was a gross
misrepresentation of the classical
liberal states’ rights tradition
. Then again, (and it’s not
my intention to be prideful here), I’m not like most Americans.
And If you’re reading this, you probably aren’t either.

Civic
Illiteracy

In 1798, Jefferson
and Madison articulated the concepts of nullification and interposition
in the Kentucky and Virginia Resolutions, which were passed in response
to the hated Alien
and Sedition Acts
. But the ideas which support nullification
and interposition were actually expressed earlier during the ratifying
convention of Virginia by
the Federalists themselves!

Given the fact,
however, that most Americans cannot even correctly
name
all three branches of our federal government, it’s probably
a safe bet that they have never heard of the Kentucky
and Virginia
Resolutions
or the fact that nullification was used to assist
runaway slaves
.

So should it
really come as any surprise that many people in Tennessee recoiled
in horror at Rep. Susan Lynn’s comments about nullification? Rep.
Mike Turner of Tennessee’s 51st District responded with a sarcastic
and condescending comment that probably expressed the sentiment
of many Tennessee’s left-liberal elites:

u201CSusan Lynn
is yearning for times gone by,u201D Turner said. u201CMaybe we could put
the poor people back to sharecropping and slavery and let the
people up at the big house have all the nice things. We've already
had that fight about states' rights.”

Lynn responded
to Turner’s comment by saying:

u201CI can't
even imagine that's a serious comment.u201D

Rep. Turner’s
comments resemble some of the incredibly ignorant and/or vicious
comments directed against today’s advocates of nullification that
frequently appear in the blogosphere. One particular blogpost I
stumbled upon really embodies the either extremely ignorant or wholly
deceptive attempt to associate today’s proponents of states’ rights
and nullification with segregationists, white supremacists and domestic
terrorists:

“Why is it
that the extremist teabaggers are not called traitors even though
they are basically calling for an overthrow of the democratically
elected U.S. government? There latest stunt should seal it. They
are calling for a long rejected theory called Nullification, and
at least one treasonous…blogger and teabagger is pushing it.”

The
Compromise of 1850
and How Abolitionists Used
Nullification

In 1850, Congress
compromised in order to hold the Union together against the divisive
issue of slavery. Since the preservation of the Union (Northern
control of the South’s economy), rather than the abolition of slavery
was foremost in the minds of influential Republican bankers, manufacturers
and heads of corporations, this compromise made
perfect sense
.

Part of this
compromise was the passage of more stringent fugitive slave legislation
that compelled citizens of all states to assist federal marshals
and their deputies with the apprehension of suspected runaway slaves
and brought all trials involving alleged fugitive slaves under federal
jurisdiction. It included large fines for anyone who aided a slave
in their escape, even by simply giving them food or shelter. The
act also suspended habeas corpus and the right to a trial by jury
for suspected slaves, and made their testimony non-admissible in
court. The written testimony of the alleged slave’s master, on the
other hand, which could be presented to the court by slave hunters,
was given preferential treatment.

As would be
expected, this new legislation outraged abolitionists, but also
angered many citizens who were previously more apathetic. In 1851,
26 people in Syracuse, New York were arrested, charged and tried
for freeing a runaway slave named William Henry (aka Jerry) who
had been arrested under the Fugitive Slave Act. Among the 26 people
tried was a U.S. Senator and the former Governor of New York! In
an act of jury nullification, the trial resulted in only one conviction.
“Jerry” was hidden in Syracuse for several days until he could safely
escape into Canada.

The government
of Wisconsin went even further and in 1854 officially declared the
Fugitive Slave Act to be unconstitutional. The events that lead
up to this monumental decision, which is a milestone in the history
of the states’ rights tradition, is one of the best
stories
most Americans have never heard.

In 2006, H.
Robert Baker, assistant professor of legal and constitutional history
at Georgia State University wrote a book called, The
Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and
the Coming of the Civil War
. In its review of the book,
The Journal of American History wrote:

“Terribly
conflicted about race, Americans struggled mightily with a revolutionary
heritage that sanctified liberty but also brooked compromise with
slavery. Nevertheless, as The Rescue of Joshua Glover demonstrates,
they maintained the principle that the people themselves were
the last defenders of constitutional liberty…”

Joshua Glover
was a slave in Missouri who managed to escape from his master. In
1854, with the help of the Underground Railroad, he made his way
north, all the way to Wisconsin. There he found work at a mill in
Racine, a community in which anti-slavery sentiment ran high. Unfortunately
for Glover, his former master, B.S. Garland eventually managed to
find out where Glover had taken up residence.

Accompanied
by two US Marshals, the three of them took Glover by surprise. In
spite of his resistance, Glover was subdued with a club and handcuffed.
Thrown into a wagon, he was surreptitiously transported to Milwaukee,
where he was thrown in jail. Glover’s abduction was discovered somehow
or another, however, and in no time one hundred or so men landed
by boat in Milwaukee.

The men marched
towards the courthouse, which was adjacent to the jail, and crowds
of people began to join their ranks or follow along as spectators.
An abolitionist named Sherman Booth, who published a local daily
newspaper there called the “Free Soil Democrat” rallied the supporters
of the citizen army shouting:

“All freemen
who are opposed to being made slaves or slave-catchers turn out
to a meeting in the courthouse square at 2 o’clock!”

When the meeting
at the courthouse adjourned, those who had assembled eventually
resolved that Joshua Glover was entitled to at least two things:
A writ of habeas corpus and a trial by jury. A local judge concurred
and delivered the writ to the US Marshals at the jail. As might
be expected, the federal officers rejected the writ as invalid.
After all, federal law trumps state judicial authority, does it
not?

The assembly
of citizens from Racine and Milwaukee must have decided that such
was not the case in this instance. In fearless defiance, they broke
down the doors of the jail and freed Joshua Glover. In an act that
probably would have filled Sheriff Mack with joy, had he been there,
the Racine County Sheriff arrested Glover’s former slave master
and the two US Marshals who had kidnapped him. They were charged
with assault and put jail. In the meantime, the Underground Railroad
assisted Joshua Glover as he crossed the border into Canada.

Although Glover
escaped to freedom, it was not without a price. Glover’s former
master, B.S. Garland was released on a writ of habeas corpus and
in the long run would sue Sherman Booth, turning him financially
upside down.

In the short
run, Booth and two other men were arrested and indicted by a grand
jury. While Booth maintained that he had never incited the crowd
to liberate Glover or that had helped Glover escape in any way,
he did not mince words either. Speaking in his own defense in front
of the US Commissioner, he proclaimed:

“…I sympathize
with the rescuers of Glover and rejoice at his escape. I rejoice
that, in the first attempt of the slave-hunters to convert our
jail into a slave-pen and our citizens into slave-catchers, they
have signally failed, and that it has been decided by the spontaneous
uprising and sovereign voice of the people, that no human being
can be dragged into bondage from Milwaukee.”

According to
his
accoun
t of these events, Henry E. Legler wrote in 1898:

“Byron Paine
made an argument in behalf of Booth that attracted attention all
over the country. It was printed in pamphlet form and circulated
on the streets of Boston by the thousands. Charles Sumner and
Wendell Phillips wrote the author letters of hearty approval and
commended his force of logic and able presentation of argument.
This pamphlet is now excessively rare; but half a dozen copies
are now known to exist.”

Judge Smith
of the Wisconsin Supreme Court made the following declaration, that
ought to inspire and motivate champions of the Tenth Amendment and
state sovereignty today. Speaking not only for Wisconsin, but of
all the states, he said that they would never accept the idea that:

“…an officer
of the United States, armed with process to arrest a fugitive
from service, is clothed with entire immunity from state authority;
to commit whatever crime or outrage against the laws of the state;
that their own high prerogative writ of habeas corpus shall be
annulled, their authority defied, their officers resisted, the
process of their own courts contemned, their territory invaded
by federal force, the houses of their citizens searched, the sanctuary
or their homes invaded, their streets and public places made the
scenes of tumultuous and armed violence, and state sovereignty
succumb–paralyzed and aghast–before the process of
an officer unknown to the constitution and irresponsible to its
sanctions. At least, such shall not become the degradation of
Wisconsin, without meeting as stern remonstrance and resistance
as I may be able to interpose, so long as her people impose upon
me the duty of guarding their rights and liberties, and maintaining
the dignity and sovereignty of their state.”

The United
States Supreme Court eventually reversed the action of the Wisconsin’s
courts. Booth and one other man accused of helping to liberate Joshua
Glover were found guilty. Both spent months in jail in addition
to having to pay stiff fines. This was the price that was paid for
Joshua Glover’s freedom.

Rather than
being deterred, however, Wisconsin, along with several other states,
such as Connecticut (1854), Rhode Island (1854), Massachusetts (1855),
Michigan (1855), Maine (1855 and 1857), and Kansas (1858) all went
on to pass even more personal liberty legislation designed to neutralize
federal enforcement of the Fugitive Slave Act of 1850.

It was no coincidence
that the 1859 statement of the Wisconsin Supreme Court borrowed
words directly from the Kentucky Resolutions of 1798:

“Resolved,
That the government formed by the Constitution of the United States
was not the exclusive or final judge of the extent of the powers
delegated to itself; but that, as in all other cases of compact
among parties having no common judge, each party has an equal
right to judge for itself, as well of infractions as of the mode
and measure of redress.

Resolved,
that the principle and construction contended for by the party
which now rules in the councils of the nation, that the general
government is the exclusive judge of the extent of the powers
delegated to it, stop nothing short of despotism, since the discretion
of those who administer the government, and not the Constitution,
would be the measure of their powers; that the several states
which formed that instrument, being sovereign and independent,
have the unquestionable right to judge of its infractions; and
that a positive defiance of those sovereignties, of all unauthorized
acts done or attempted to be done under color of that instrument,
is the rightful remedy.”

The
End, or Just the Beginning?

Few Americans
have ever heard the heroic story of how the people of Wisconsin
and several other states stood up to the federal government’s tyrannical,
unconstitutional slave laws with the help of their elected state
officials.

Today state
sovereignty and the Principles of 1798 are being invoked
again
, for a variety of reasons, just as they were invoked for
a variety of reasons all throughout American history, in spite of
what you may have been taught or are being told today.

States legislatures
all over the Union today are standing
up
and re-asserting their sovereignty, which is guaranteed by
the 10th Amendment. They are proposing and passing legislation which
would nullify a whole host of unconstitutional federal laws including:
The federally mandated national “REAL
ID
” card, restrictions on the use of Medical
Marijuana
, unconstitutional
deployments
of State National Guard units, federally mandated
health insurance
, unconstitutional regulations of state manufactured
firearms
and much more…

It is tragic
that left-liberals have seemingly abandoned the classical liberal
states’ rights tradition in favor of nationalism and the centralization
of power. It is also shameful that they have made a concerted effort
to associate nullification with slavery in the minds of average
Americans. As Josh Eboch, State Chapter Coordinator for the Virginia
Tenth Amendment Center
observes:

“Of course,
even though activists on the left supported nullification for
Real ID and also for medical marijuana, those calling for state
sovereignty with regard to health care will have to deal with
the standard cries of racism and references to the Jim Crow…But
just because nullification was used [unsuccessfully] in the past
to deny rights to certain groups doesn’t mean it can’t be used
to regain our rights today. In the end, ‘for desperate people
whose freedoms are being systematically usurped by all three federal
branches and both political parties, nullification may be the
key to restoring our republic’.”

February
15, 2010

Derek
Sheriff [send
him mail
] is the state chapter coordinator for the Arizona
Tenth Amendment Center
.

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