Health Care, States' Rights, and the Shadow of John C. Calhoun


Writing at The New Republic, Princeton historian Sean Wilentz argues that the current opposition to the health care bill and other federal initiatives has ugly roots in the pro-slavery secessionism of South Carolina's John C. Calhoun and the segregationist states of the Jim Crow South. As Wilentz puts it:

Now, as in the 1860s and 1960s, nullification and interposition are pseudo-constitutional notions taken up in the face of national defeat in democratic politics. Unable to prevail as a minority and frustrated to the point of despair, its militant advocates abandon the usual tools of democratic politics and redress, take refuge in a psychodrama of "liberty" versus "tyranny," and declare that, on whatever issue they choose, they are not part of the United States or subject to its laws—that, whenever they say so, the Constitution in fact forms a league, and not a government. Although not currently concerned with racial supremacy, the consequence of their doctrine would uphold an interpretation of the constitutional division of powers that would permit the majority of any state to reinstate racial segregation and inequality up to the point of enslavement, if it so chose.  

I'm fairly certain that there's no movement afoot to repeal the 13th Amendment, which is what it would take to reinstate slavery in the states. So perhaps Wilentz can at least rest a little easier on that point.

And while it's true that the debate over ObamaCare has sparked some overheated talk of states' rights and state nullification of federal law, that's hardly the only thing going on. Indeed, what Wilentz fails to mention are the actual legal arguments being made against the health care bill, most of which center on whether requiring individuals to buy health insurance from a private company is a permissible act of Congress under the Commerce Clause. That particular question has nothing to do with states' rights and everything to do with the most fundamental issue in American law: Is the government acting within its constitutional powers?

In Wilentz's selective version of the story, ObamaCare opponents are abandoning "the usual tools of democratic politics and redress." But since when is filing a federal lawsuit akin to secession? Under Wilentz's logic, the ACLU would be a bunch of damned Calhounians for challenging the PATRIOT Act or other anti-terror measures in court.

As a historian, Wilentz should know that from time to time the federal government goes a little overboard and exceeds its constitutional authority. Thanks to Article III, Section I of the Constitution, which grants "the judicial power" to the federal courts (meaning that judges can strike down unconstitutional laws), we have at least one check on these occasional power grabs. But first somebody has to file suit. That's the main thing happening here: lawsuits. And despite Wilentz's implication, challenging federal law in court is a perfectly legitimate form of redress that has nothing to do with slavery, secession, or segregation.