Union and States' Rights: 150 Years After Sumter, A Legal History of Interposition, Nullification, and Secession

9. Originalism’s Limits

204 9Originalism’s Limits Interposition, Nullification, and Secession LeeJ.Strang,UniversityofToledoCollegeofLaw C onventional wisdom on interposition, nullification, and secession has twocomponents:First,priortotheCivilWar,itwasaplausible—though not necessarily the strongest—claim that states were constitutionally permitted to use the ‘tools’ of interposition, nullification, and secession;1 and second, following the Civil War, that claim became false.2 In this chapter, I use thesetwofacetsofconventionalwisdomtoexemplifyanoriginalistapproachto questionsofconstitutionalinterpretationand,moreimportantly,someoforiginalism ’s limits. Specifically,Iarguethat,priortotheCivilWar,originalismhadlittletooffer regarding two of the most common arguments3 for and against the constitutionalvalidityofinterposition ,nullification,andsecession.AftertheCivilWar, however, the concept of constitutional construction provided originalism with the means to definitively evaluate the legitimacy of these same arguments. The CivilWaritself,coupledwiththedecisionsofeachbranchofthefederalgovernment and the state governments, constructed the Constitution’s meaning to make the two most common arguments used for the constitutional validity of interposition,nullification,andsecession,frivolous.4 Furthermore,Isuggestthat the Civil War may constitute a binding constitutional precedent that today’s government officials must respect. lee j. strang 205 i. the life, death, and resurrection of interposition, nullification, and secession A. Introduction Claimsthatstateshavetheconstitutionalauthoritytointerpose,nullify,and secede have ebbed and waned over the centuries.5 The exact contours of these three concepts are hazy, as advocates and critics have drawn upon various conceptionsatvarioustimes .Themostfrequentlyemployedconceptionofnullificationisthateachstatehastheauthoritytoascertainwhetheranactofthefederal government is constitutional.6 If a state determines that an act is unconstitutional , that state may, among other remedies, interpose its authority—that is, precludetheoperationofthatunconstitutionalfederalactwithinthestate.7 Secession involves a state’s withdrawal from membership in the United States, often as a mechanism of last resort to enforce a state’s attempted nullification and interposition.8 I wish to focus on two aspects of antebellum claims for and against nullification and secession. First, arguments both for and against nullification and secessionfailedtofocusontheConstitution’stextandoriginalmeaning.Instead, advocates nearly always resorted to more generalized arguments and treated text-basedargumentsaseithersuperfluoustoorsupportiveoftheirmainphilosophical argument. This phenomenon primarily manifested itself in the form of two opposing claims: The Constitution was a compact among the states, or it wastheconstitutingactofonenationalpeople.Second,thosetext-focusedarguments that were made, were not powerful. Rather, they tended to be strained readings and frequently mere assertions. Buildingonthesetwopoints,inpartII,Ishowthatoriginalism’slimitsmake it difficult to say that originalism had the resources, prior to the Civil War, to definitively evaluate these two claims. I then show that, after the Civil War, the situation was different and that originalism could utilize the concept of constitutional construction to definitively say that the primary arguments in favor of the constitutional validity of nullification and secession were frivolous. Additionally , I briefly suggest that the Civil War constituted a precedent that bound later interpreters to reject the two primary arguments in favor of nullification and secession. B. Compact or “One People”?, and Textual Hooks Arguments for and against nullification and secession came in three basic forms; I will concentrate on two:9 (1) whether the Constitution was a compact 206 Originalism’s Limits formed by independent states who retained the sovereignty to authoritatively judgeforthemselvestheConstitution’smeaningandtoleavethecompact;10 and (2)whethertheConstitution’stextand/orstructureauthorizedstatestoauthoritativelyinterprettheConstitutionandleavetheUnion .11 Thecompact-noncompactdistinctiondominatedthesedebates .12 BelowIprovideasamplingofthese two forms of argument.13 TheearliestprominentemploymentoftheseargumentsoccurredintheKentucky Resolutions and the Virginia Resolutions,14 issued in response to the Alien and Sedition Acts.15 Drafted by Thomas Jefferson and James Madison, respectively , the resolutions provided the foundation for subsequent nullification and secessionadvocates.16 Theresolutions’coreconclusionwasthateachstate’sinterpretation of the U.S. Constitution had at least as much authority as federal court interpretations.17 This claim was premised on a common, though contested, theory of the Constitution: the compact theory.18 On this view, the Constitution was a contract among coequal parties who retained their independent authority tointerpretthecontract,includingbreachesthereof,bythefederalgovernment.19 The compact theory was one major theory on the nature of the Constitution .20 Butothersheldadifferentview,anationalistviewexemplifiedbythetepid andinmanycaseshostileresponsesaccordedtheKentuckyandVirginiaresolutions .21 Forexample,Massachusettsrejectedthecompacttheoryrelieduponby Kentucky and Virginia and instead asserted that one national people—“the people themselves”—had delegated interpretative authority to the federal governmentandreservedonlyoneinterpretativeroleforthestates :theamendment process.22 Massachusetts claimed that individual state interpretative authority would lead to anarchy as various states, with varying interpretations, vied with one another, and with the federal government, for supremacy.23 SomeresponsestotheresolutionsmadesuperficialappealstotheConstitution ’s text to support their positions. Rhode Island, for instance, argued that Article III vested the federal Supreme Court with “exclusive[]” and “ultimat[e]” interpretativeauthority.24 Massachusetts,usingasimilarargument,contended thatthefederaljudiciarywas“exclusivelyvestedbythepeople”withtheauthority to interpret the Constitution.25 To counter arguments against the first resolutions, Kentucky adopted a secondKentucky Resolutionthat,forthefirsttime,raisednullificationasamechanismtokeepfederalconstitutionalmisinterpretationsincheck .26 Virginiaalso responded via Madison’s famed Report of 1800.27 This Report, issued by the Virginia House of Delegates, defended the Virginia Resolutions...