Don’t repeat this historyLooking out from the harbor here, it’s easy to imagine a mortar lighting up the night sky as it hurtled toward Fort Sumter and signaled the start of the Civil War. It’s also easy, standing inside the walls of the island garrison, to view today’s nullification battle over health care less as a frivolous political game and more as a serious threat to the Constitution.
By: Steve and Cokie Roberts, The Jamestown Sun
CHARLESTON, S.C. — Looking out from the harbor here, it’s easy to imagine a mortar lighting up the night sky as it hurtled toward Fort Sumter and signaled the start of the Civil War. It’s also easy, standing inside the walls of the island garrison, to view today’s nullification battle over health care less as a frivolous political game and more as a serious threat to the Constitution.
“The last ray of hope for preserving the Union peaceably expired at the assault on Fort Sumter,” mourned President Abraham Lincoln. Painted on the wall of the fort’s small museum, those words remind us that the war was the final act in the unraveling of the union. The disintegration began here in South Carolina as well, with the state’s declaration almost 30 years earlier that federal tariff laws were “unauthorized by the Constitution ... and are null, void and ... not binding on this state.”
That states’ rights sentiment is with us again. The attorney generals of 14 states have filed suit challenging the health care law because, they argue, the Constitution does not authorize the federal government to require the purchase of health insurance. Virginia, acting in direct defiance of federal law, passed a measure making mandated health insurance illegal.
To critics who say this is just political gamesmanship by Republican AGs (plus a Louisiana Democrat who claims he’s doing the bidding of the Republican governor), the states’ chief-law-enforcement officers insist they’re following in a tradition dating back to the Founding Fathers themselves. Thomas Jefferson and James Madison, they remind us, wrote the Kentucky and Virginia resolutions challenging the Alien and Sedition Acts as an assumption of “undelegated powers” by the federal government. The 1798 resolutions termed the laws “unauthoritative, void and of no force.”
It’s a familiar argument to anyone who lived through the civil-rights era in the American South when Jefferson and Madison were hauled out regularly as champions of states’ rights. The memory of that struggle remains fresh in Arkansas, where the attorney general has resisted pressure to join the nullifiers, sharing Democratic Gov. Mike Beebe’s view that “They tried it here in Arkansas in ’57, and it didn’t work.” That year, President Dwight D. Eisenhower sent in federal troops to enforce school integration, deeming the Supreme Court’s school-desegregation decision “the law of the land.”
Recalling his state’s history, Attorney General Dustin McDaniel bluntly concludes: “A state deciding that it wants to singularly defy federal law simply because the citizens may not like it — that’s not the way the democratic process works. That’s not the way the Constitution is set up.”
In the 1950s, it was the Supreme Court, not the Congress, that then-Arkansas Gov. Orval Faubus took on by his insistence that “neither the state of Arkansas nor its people delegated to the federal government ... the power to regulate or control the operation of the domestic institutions of Arkansas.”
And it’s the Supreme Court that is likely to have the final say on this current challenge to federal authority. Most legal experts agree that the justices will probably uphold the health care law under the clause of the Constitution that gives the federal government the power to regulate interstate commerce. But the currently constituted court could come to a different conclusion, and the defenders of states’ rights could once again, as they did in the days before the Civil War, find a judicial branch sympathetic to their views.
It’s hard to imagine what would happen politically if the Supreme Court sided with some states against Congress. The already severely frayed fabric of government would certainly be further torn apart. It’s far better to leave the health care debate in the arena of electoral politics — and for the losers to accept defeat. That’s the essence of democracy.
It’s an election, after all, that defused that first challenge to federal authority. Jefferson won the presidency and simply allowed the Alien and Sedition Acts to expire. The Kentucky and Virginia resolutions became irrelevant until the South Carolina nullification declaration when John Calhoun invoked them as precedent for his actions. But Madison was still around to dispute Calhoun, calling the South Carolinian’s attempt to defy the law “anarchical,” adding that it would have “the effect of putting powder under the Constitution & Union, and a match in the hand of every party, to blow them up at pleasure.”
Which, of course, is exactly what happened 30 years later here at Fort Sumter. It’s not a history any American wants to repeat.
Steve Roberts’ new book, “From Every End of This Earth” (HarperCollins), was published this fall. Steve and Cokie Roberts can be contacted by e-mail at firstname.lastname@example.org.
Copyright 2010, Steven and Cokie Roberts
Distributed by United Feature Syndicate, Inc.