Constitutional Law

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

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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.

NEXT: Health Care Reform Endgame: Old People Matter More Than Poor People

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  1. RACIST!!!11!

    1. You only say that because you’re a crypto-communist that wants a totalitarian government to purge society of right wingers and old people!

  2. I agree, anyone that thinks california can just legalize marijuana within it’s borders, blatantly ignoring the important controls on this substance (that were put in place for the safety and HEALTH of the population, mind you!), is a horrible racist.

    1. Don’t forget:
      Abolition – Trying to use “states’ rights” to get most black people in the South fired? I bet the angry, overpaid white sharecroppers’ union was behind it. Racist!

      Women’s Suffrage – Too many black people exercising the franchise? Want to use “states’ rights” to water down their votes by conscripting a new army of simple-minded, submissive white voters? Racist!

      Gay Marriage – Don’t black women have a hard enough time trying to find a good man? “States’ rights”? I say racist!

      1. States shouldn’t have rights. We should abolish all state legislatures, and issue edicts from Washington DC.

  3. Too many Liberals are uneducated. This is what not knowing history gets America.

  4. Everything just has to be about race with these people, doesn’t it?

    This is way past the point of being comedic and barreling through pathetic at a breakneck pace. I’m easily one of the stupidest regular posters here but I like to think that I show some type of genuine logic in my infrequent serious posts. It almost seems like these idiots are so race obsessed themselves that they can’t see much past that and thus default to “racism” as to why their Messiah is opposed at every opportunity.

    I don’t drink but damn, I think I need shot.

    1. Calling yourself stupid is racist. Like I’m not supposed to complete the thought your surely suggesting, “I’m stupid, like black people.”

      For shame.

  5. I’m confused. Is opposing Obama more like advocating slavery or kristallnacht? Get your damn meme straight, people!

  6. Just because it’s impossible to oppose the president on anything without being a racist doesn’t mean you’re not a racist.

    Think about that.

  7. “Just because it’s impossible to oppose the president on anything without being a racist doesn’t mean you’re not a racist.”

    Oh, and just as a corollary to that, if you’re not opposing the president because he’s black? Then you’re a racist too.

    Think about that.

    1. And probably a necrophiliac too, just for good measure.

      1. If thinking about racism makes you post comments about necrophilia?

        That doesn’t necessarily mean you’re a racist, but what does it mean?

        Think about that.

        1. Necrophiliphobia?

  8. Just another reductio ad racism argument.

    These people are pathetic and worse, repetitious.

    1. But it works!

      It Works!

      It Works!

  9. Speaking of dating out, a discussion on militias just wrapped up at WaPo by America’s favorite Paranoid Center pundit, Gene Robinson.

    From his race baiting, it appears Wilentz beat him to the punch.

    1. Saw that one too. It would have ruined my breakfast but then I considered the source. Is he EJ’s brother from another mother?

      1. I fight back the hurl at questions submitted by those-who-feel-compelled-to-confess-their-guilt…

        1. “I am a small business, white Jewish woman, who listens regularly to Morning Joe…”

        2. “I am the last person to play the race card (being a white woman), but I–and my friends for that matter–simply cannot think of another reason…”

        blaarggggghh

  10. Yep, keep playing that race card. It only a deck of 52, right?

  11. The same theme was explored last week by Tom Ashbrook on NPR. He had two guests. One was a Duke law prof and the other was a guy with the last name of Woods from the Von Mises Institute.

    Surprise, the Duke law prof expressed the view that Obama opposition, in general, and Obamacare opposition, in particular, were rooted in racism with states rights the vehicle. He, too, invoked the ante-bellum south, Jim Crow and Boss Connor.

    Woods countered that those objecting to Obama’s power grab represented that which is truly the greatest of american ideals: speaking truth to power, including the observation that the Declaration of Independence was a declaration of SECESSION. He made the correct observation that law professors and lawyers do not know the constitution, the ratifying conventions and the literature by and between the founders as well as historians like himself. He’s right. Many of the state ratifying conventions were told and reassured that the proposed federal government would not be able to do anything beyond that which was explicitly granted and that the necessary and proper clause could only be used in a manner that would not interfere with individual liberty and states rights.

    The Duke law prof preferred to focus on racism, i.e., if one supports state nullification of a federal program, one is a racist. If one supports the right of an individual to by-pass the wishes of the people as reflected in the passage of legislation by a democratically elected body, one is a racist.

    What is amazing is that too many otherwise intelligent people fall for this bullshit. If one condemns the horrors perpetrated by Lincoln and the yellow bellied bluecoats, like thumbing recalcitrant blacks, one is a neo-confederate racist. Such thinking is, of course, irrational and not fit for a free people.

    1. Yeah, their arguments boil down to:

      “Did you know that certain people who were racists supported states rights?…. From this I surmise that states rights = RACISM!”

      The good news is that the leftist intelligentsia has gone so amazingly overboard with their racism claims that it’s alienating lots of reasonable people.

      The fact is that states rights (and federalism as a corollary) is an incredibly reasonable solution to a lot of the divisive issues we have today. The moment that people become more informed about this theoretical issue regarding government, the more the ruling class looks stupid.

      Also, I bet big money that when California legalizes marijuana, they will use 10th amendment states rights arguments and there will be a lot of embarrassed hipsters with common cause with the tea partiers.

  12. Hmmm. If all medical care givers are obligated to perform their duties at a time and place and for a recompense decided by the government, how is that not slavery? And that means the 13th Amendment has been de facto repealed as to such things as the labor of another for basic human rights like medical care.
    Good healthy, fresh, organic food is probably the next basic human right.
    Farmers and grocers won’t like this.

  13. Question: How does using the 16th Amendment taxing power to impose a higher income tax on people who do not buy health insurance implicate the Commerce Clause? Isn’t the 16th Amendment taxing power independent of the Commerce Clause?

    1. You keep referring to this Commerce Clause. I think you have it confused with the Coerce Clause.

  14. Its almost like every single one of these clowns pushing the racist-segregationist-angry-white-men narrative has been supplied a memo synchronously.

  15. Prsumably Wilentz would have been all in favor of the Dred Scott decision insofar as it trampled states rights by effectively making slavery legal in every state of the Union.

    Oh, and has anyone mentioned the Fugitive Slave Act to him as a model of wonderful federal legislation?

  16. Sean Wilentz like too many historians would like things to fit into a nice, tightly wrapped Manichean bow. Too bad, for him. Here is a present for him recently unearthed by tom Woods.

    From the ‘Left Out of the Textbook’ Dept.
    Posted by Thomas Woods on March 28, 2010 09:35 PM

    From a handbill that circulated in Milwaukee in the 1850s, in reference to the Fugitive Slave Act of 1850 (emphasis in original):

    All the People of this State, who are opposed to being made SLAVES or SLAVE-CATCHERS, and to having the Free Soil of Wisconsin made the hunting-ground for Human Kidnappers, and all who are willing to unite in a STATE LEAGUE, to defend our State Sovereignty, our State Courts, and our State and National Constitutions, against the flagrant usurpations of U.S. Judges, Commissioners, and Marshals, and their Attorneys; and to maintain inviolate those great Constitutional Safeguards of Freedom ? the WRIT OF HABEAS CORPUS and the RIGHT OF TRIAL BY JURY ? as old and sacred as Constitutional Liberty itself; and all who are willing to sustain the cause of those who are prosecuted, and to be prosecuted in Wisconsin, by the agents and executors of the Kidnapping Act of 1850, for the alleged crime of rescuing a human being from the hands of kidnappers, and restoring him to himself and to Freedom, are invited to meet at YOUNGS’ HALL, IN THIS CITY, THURSDAY, APRIL 13TH, at 11 o’clock A.M., to counsel together, and take such action as the exigencies of the times, and the cause of imperiled Liberty demand.

    A State League opposed to slavery that is imposed by the Federal Government? Oh my, how does Wilentz square that in his two bit but all too common narrative?

  17. What a jerkoff. Republicans were the party of anti-slavery. I am still in awe at how histerically fond the democratic base is of this piece of crap law. “Lets make the evil insurers richer” and in the mean time lets make sure everyone sees that a big mac has 1100 calories. It makes no sense. Are they just really thrilled that they were able to bargain a piece of shit bill through that was extremely unpopular?

    On a second note, how come CNN doesnt have the slightest snipit about the FOIA revelation that NASA has no clue what the temperature of the earth is, was or is going to be?

  18. Actually, Wilentz is both historically ignorant and engaging in pretty blatant race baiting. The doctrine of state sovereignity and states declaring federal action unconstitutional goes back to Jefferson and Madison and the Kentucky and Virginia Resolutions of 1798, which were in opposition to the Alien and Sedition Acts.

    1. Uh, Wilentz does mention the Virginia and Kentucky Resolutions. He also mentions Madison’s later denial that the Resolutions ever intended to justify nullification.
      (Wilentz also tries to distingish them from subsequent attempts at nullification by saying that in pre-*Marbury* days the power of the Supreme court to declare federal laws unconstitutional was not yet clear. Actualy, the reason the Democratic-Republicans didn’t challenge the Alien and Sedition Acts before the Supreme Court is that they knew it was hopeless–all the Justices were Federalists.)

      Also, it is not clear to me that Wilentz is criticizng the bringing of lawsuits to dispute the constitutionality of federal laws. His two links are to bills passed by the Utah and Virginia legislatures in effect declaring some federal gun laws and Obamacare null in Utah and Virginia, respectively. In short it seems to be state *legislative* defiance of federal laws–not lawsuits against these laws–that he is objecting to.

      It can of course be argued that this is a distinction without a difference, since these state laws will be challenged by lawsuits and AFAIK neither Utah nor Virginia has declared that it will not obey an adverse SCOTUS ruling. *That* was the distinctive character of South Carolina’s nullification ordinance (and of “massive resistance” in the Deep South in the 1950’s)–the defiance of federal courts.

  19. Here is a hypothetical.

    Suppose a future Congress passed a law declaring that marriage is to be between one man and one woman, and no legal benefits shall be available to same-sex couples. (this is similar to the constitutional amendment adopted by Florida in 2008.) Would people who argue that such a law is unconstitutional on the basis that the law exceeds the Congress’s enumerated powers be racists and segregationists?

    How would Sean Wilentz answer?

    1. I’m pretty sure no hypothetical can fuck up the question of racial oppression and federalism more than the non-hypothetical Dred Scott v. Sanford.

  20. Sean Wilentz = retarded fetus.

  21. I wanted to make a snide remark replying to these idiots in the comments section at TNR’s article, but sadly, I’d have SUBSCRIBE just to get a freaking account! Hell no, I won’t pay 40 bucks or however much they’re charging for some liberal rag just to comment on an article. seriously, wtf?

    So much for “free speech”, eh, TNR?

    1. By definition, property involves the right to exclude. So how can TNR be violating “free speech” by requiring people to subscribe if they want to comment in TNR’s comments section? People are free to comment on them anywhere else.

      I am happy that Reason keeps this forum open to a non-subscriber–and I will ready acknowledge, a non-libertarian–like myself, but if they didn’t, I would hardly view this as a violation of my freedom of speech.

  22. It’s always funny to see a HISTORIAN comment on constitutional questions, because 9 times out of 10, they get it WRONG. How about an actual constitutional lawyer or expert commenting on this nullification issue, not some biased, probably a Democrat, history professor?

  23. The first idiot commenter under the article at TNR claimed that WE are the bullies. HA! He should take a good look in the mirror. It’s him and his big-gov’t friends who keep shoving this bullcrap down our throats and forcing all sorts of federal mandates on the states that are the real bullies. I mean, unfunded mandates SURELY is something the Founders would’ve said is unconstitutional.

    We’re just doing all we can to defend ourselves! God, these people really get on my nerves. It’s like they think the election of Roosevelt in 1932 automatically amended the 10th Amendment OUT of the Constitution and made us a unitary state.

  24. What’s even funnier is how some political and history textbooks refer to various time periods since the new deal. shit like “cooperative federalism.” Lol. Yes… ‘cooperative’, my ASS. Teh feds were forcing themselves on the states at every turn. And esp. that revealing term “coercive federalism.”

    It’s not REAL federalism if one side is telling the other what to do 24/7.

  25. Sarah Palin will solve everything!

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