Proponents of nullification continue to spread the message that the solutions that Americans say they want will not be found at the federal level. They painstakingly show how the principle is constitutional, supported by history and attractive to people from all points of view. Yet, despite these efforts one charge is always leveled at nullification in an attempt to shut down debate. This charge is that nullification is synonymous with racism.
The people who trumpet this charge base it on two points, the accurate statement that several southern states attempted to nullify desegregation in the 1950s and the inaccurate statement that the South used nullification to protect slavery in the first half of the 19th Century. However, if we look at nullification’s history we find that it becomes incredibly difficult to make the claim that nullification is racist in principle.
Let’s review some of the ways in which the principles of nullification have been used with respect to race.
1826: Pennsylvania enacts a Personal Liberty Law which makes it more difficult to return runaway slaves to bondage. The Supreme Court later declares this law unconstitutional.
1854-1858: Passage of Northern Personal Liberty Laws, state laws aimed at nullifying the Fugitive Slave Act of 1850 (eight Northern states pass laws to this effect and Ohio passes two).
1857: Vermont and Massachusetts nullify the Supreme Court’s decision in the Dred Scott case. The Court held that Scott, a former slave, his family, and any person of African ancestry was not, nor could ever be, a citizen of the United States. These two states hold that the Court’s ruling has no effect within their borders.
1859: Wisconsin nullifies the Fugitive Slave Act and the Supreme Court’s decision in Ableman v. Booth. Joshua Glover, a runaway slave, was being held in federal custody and about to be returned to slavery when a Wisconsin mob, led by abolitionist Sherman Booth, freed him. Booth was arrested by federal agents, but was promptly released by a Wisconsin state judge. Booth was arrested again and convicted in federal court, but the Wisconsin Supreme Court intervened and freed Booth on a writ of habeas corpus, calling the Fugitive Slave Act unconstitutional. The U.S. Supreme Court then stepped in and ruled in Ableman v. Booth that Wisconsin had been wrong to free Glover and release Booth. The Wisconsin legislature responded with a set of resolutions that declared that the U.S. Court’s decision was “unauthorized by the Constitution” and “void, and of no force.” While all of this was transpiring, Glover escaped to Canada.
These instances clearly demonstrate that nullification is not merely a tool of bigots. They also show that nullification was not used in defense of slavery and was, in fact, used to attack it. In reality, it would be wrong to say that there is no connection between nullification and slavery, but that connection is exactly the opposite of what the opponents of nullification say it is. Furthermore, as Tom Woods has pointed out, slavery was perfectly legal before 1865, so exactly what anti-slavery laws would have required nullification is unclear.
“But,” the objectors will say, “remember that episode in the 1950’s. That proves that nullification and racism are linked!” Even with this example, the only thing that has been proven is that some people in history have used this principle in an attempt to achieve malevolent ends. This mere fact doesn’t condemn the entire principle. If this logic were acceptable then the federal government would be considered exponentially more racist than nullification.
All three branches of the federal government have advocated and enacted racist policies. The Supreme Court gave us the Dred Scott decision. Congress passed fugitive slave laws which allowed slave-holders to enter free states, kidnap people and force them into slavery. A prominent northern president advocated a constitutional amendment making slavery eternally legal and untouchable. After the Civil War, the federal government stole the land of Indians, raided villages, murdered women and children and herded the survivors onto reservations. It later interned an entire ethnic group in concentration camps during World War II.
These examples, combined with many others, prove that the federal government is inherently racist. That is, it proves this point if we use the logic of the opponents of nullification. It is curious, then, that the charges of racism are never leveled against the national government. It’s almost as if the charge is not as much about real concern over policies as it is about suppressing any attempt to check centralized power.
If we remove the inflammatory and intellectually bankrupt attempts to link nullification in principle with racism, we can focus on the real issue, which is that nullification offers protection against the gross misuse of government power that the people who make these charges say they abhor. If the opponents of nullification want to contest the idea that nullification is constitutional, effective, desirable or any other point of contention, we are happy to have those conversations. But let’s at least dispense with silly, vacuous rhetorical charges that are not only untrue, but only serve to distract from the real issues at hand. Failure to discuss nullification on a substantive rather than rhetorical basis can only lead us to the conclusion that our opponents are unable to refute our positions and must resort to guilt by (false) association in their attempts to defeat our movement.