Confederate "Heritage" Month, April 2: Nullification and secession, the War of 1812 experience

John Dos Passos had among his later works two popular histories, Mr. Wilson's War (1962), about the First World War, and The Shackles of Power: Three Jeffersonian Decades (1966). Written in an attractively accessible style, both forgo the burden of footnotes. Which can be frustrating if you like to read the footnotes. Or want to follow up on the source for a quote or claim.

While it makes for smooth reading, important nuance can suffer.

In Shackles of Power, Dos Passos writes about one of the important milestones in the development of states' rights and federal power. It has to do with the Federalists who sympathized with Britain in the War of 1812. They promoted their own version of secessionism in the process. Here is the description given by the 1960 edition of The Beards' New Basic History of the United States by Charles, Mary and William Beard:

To make matters worse for [President James] Madison, the war was decidedly unpopular in the Northeast where, presumably, a war proclaimed in behalf of free commerce would have been welcomed. In the House of Representatives, Daniel Webster, of Massachusetts, denounced the draft of men as unconstitutional. Federalists decried the conflict as merely "Mr. Madison's war." The govemor of Connecticut refused to obey the President's call for troops and the Connecticut assembly declared the state to be "free, sovereign and independent." A convention of delegates from various parts of New England, assembled in Hartford in October 1814, adopted resolutions akin in spirit, if not in letter, to those put forth by Kentucky and Virginia in 1798.

Thomas Jefferson (1743-1826)

Dos Passos echoes the comparison to the Virginia and Kentucky Resolutions:

Jefferson never forgave the Essex Junto [of pro-British secessionist advocates], any more than he forgave Aaron Burr, for their efforts to break up the Union. He wrote of the mortification of the New England clergy, whom both he and Madison blamed for the Federalist excesses, exulting bitterly in "the disgrace with which they have loaded themselves in their political ravings, and of their mortification at the ridiculous issue of their Hartford convention. no event more than this has shown the placid nature of our constitution. under any other their treasons would have been punished by the halter. we let them live as laughing stocks for the world, and punish them by the torment of eternal contempt."

In the course of the war the Republicans had switched politics with the Federalists. The Federalists were now defending nullification and states' rights as Jefferson and Madison had defended them at the time of the Kentucky Resolutions. The Republicans were now the party of central government, a standing army, and a navy capable of meeting force with force in relations with foreign nations. To that they were about to add a tariff for the protection of manufactures. (p. 286}

Given how the Confederates and their later apologists use historical precedents to justify the secession of 1860-61.

The neo-Confederate version is pseudohistory. Or Fake History, in more topical phrasing.

So part of what I try to do in these Confederate "Heritage" Month posts is to promote real history. In the case of the positions Jefferson and Madison took at the time of the Virginia and Kentucky Resolutions, the Britannica Online article on them rightly notes, "The Virginia and Kentucky Resolutions were primarily protests against the limitations on civil liberties contained in the Alien and Sedition Acts rather than expressions of full-blown constitutional theory. Later references to the resolutions as authority for the theories of nullification and secession were inconsistent with the limited goals sought by Jefferson and Madison in drafting their protests." (internal links omitted)

The US Constitution, like all constitutions and legal systems, evolves as new problems arise. The Constitution of 1789 didn't explicitly address the question of whether or not a state in the Union could secede by its own choice. Of course, a Constitutional Amendment could always allow for a state to leave the Union. But that would require much more than the single state's own choice.

It's worth noting that the present-day Brexit may wind up raising some similar issues. The 2004 EU Constitution does provide for an exit process. But as the two-year period of negotiation that Britain just initiated proceed, we could see the remaining EU nations contesting the terms and the timing of the actual Brexit event. Here is the BBC News summary of that aspect of the EU Constitution (What the EU constitution says 06/18/2004):

In fact, the EU under Angela Merkel's leadership is already making such threats. Nikos Chrysoloras and Patrick Donahue report in EU Puts the Squeeze on U.K. as Brexit Negotiation Clock Ticks Bloomberg 03/31/2017:

The European Union told U.K. Prime Minister Theresa May she will have to wait almost two months for Brexit negotiations to begin and that talks on a trade deal can come in the fall, but only if she first agrees to pay an exit bill.

The EU moved quickly to exercise its control over the Brexit countdown clock now that May has triggered the two-year negotiation period. Substantive talks can’t begin until May 22, when EU governments are set to approve the final negotiating directives for the bloc’s Brexit point person, Michel Barnier.

In the United States, the question of whether a state can leave the Union on its own accord was settled decisively at Appomattox.