This post appeared originally at my Huffington Post column on June 23, 2015.
It is all to the good that the Confederate flag is now being seen as odious and hateful by most Americans. It truly has been a symbol of hate and injustice going all the way back. In the Civil War it was used to rally slave-holders and their sympathizers to battle. And in the segregationist South of the 1950s and 1960s, it was revived as a means of expressing resistance to the cause of civil rights and equality. It is time to strike those colors once and for all, remove them from the South Carolina statehouse grounds, expunge them from the Mississippi state flag, and banish them from any and all places of honor in American society.
But we should go deeper than asking for symbolic change, as important as that is. I’d like in particular to call attention to a troubling development found mostly in deep red, Republican states, and that is the unholy marriage between Confederate ideology and the Second Amendment.
The bond that unites Confederate ideology and the Second Amendment is the idea of “nullification.” This is the belief that the states are the ultimate arbiters of what is or is not constitutional and that the states are thus always free to ignore federal law. States and not the courts, on this warped view of the Constitution, judge what is or is not constitutional.
This ideology has a long and deep and ignoble history. We might begin with John Taylor of Caroline (1753-1824), whom Garry Wills called “the principal theorist of nullification.” He was a lawyer and a planter who sought to insulate his home state of Virginia from what he feared as early as the 1790s to be the growing, threatening powers of the national government.
The best way to defend Virginia, Taylor proposed, was to ensure that the states were the final word on what the Constitution meant. States, he argued, always retained the right, if not the responsibility, to disobey the federal government where they believed the federal government overstepped constitutional limits. Taylor meant by this doctrine to strengthen and make secure the system of slavery, from which he personally profited, since Virginia and the other Southern states would always be free to declare null and void any federal law infringing on slave-holders’ “rights.”
In the 1820s and 1830s, this proposal was worked into a full-blown constitutional theory by John C. Calhoun (1782-1850). Calhoun opposed the federal tariff that was then threatening the profitability of South Carolina’s plantation-based way of life. Fearing the implicit threat to the slave-based economy, Calhoun insisted that South Carolina might declare the tariff unconstitutional.
South Carolina tried to do just that in 1832, but backed off this ledge when confronted with federal military intervention. South Carolina climbed back onto that ledge in 1860/1861 when it — and other Southern states — seceded from the Union.
These states acted as they did because they believed that the states might judge the federal government and withdraw from the Union as a last resort. Nullification, in other words, was a prominent feature of the constitutional theory that justified the Confederacy. It was a doctrine finally repudiated by the Civil War and by the ratification of the Fourteenth Amendment in 1868.
What does this history have to do with the Second Amendment? Simply this: Nullification, a concept that should have died a century and a half ago, has been resurrected from the tomb by gun-rights extremists and is triumphing in legislature after legislature in America’s deep-red states.
Consider Kansas. Kansas under the leadership of Governor Sam Brownback, is well-known for its extremist politics. Brownback’s fiscal policies have wrecked the Kansas economy, Kansas education, and much else. Brownback has sought steady reductions in the state income tax, substituting for it “the highest tax on food in the nation.” And what does Kansas have to show for its regressive fiscal policy? While most regions of the United States are enjoying economic recovery, Kansas is not. In May, 2015, a report showed that Kansas lost “nearly 4,000 jobs … trailing the national trend.”
That is bad enough, a tragedy for the Kansans who are suffering under Brownback’s misrule. But just as bad is the gun legislation he has signed. In 2013, the state legislature enacted the “Second Amendment Protection Act.” By its terms, the legislation ostensibly prohibits the federal government from enforcing federal gun control laws on Kansas soil with respect to certain classes of weapons.
Alright, you might say, Brownback is an unrepentant extremist. But, unfortunately, Kansas is not an outlier. In recent years, other red states have followed a similar path. Bruce Otter is the 70-something governor of Idaho. He has spent a lifetime in Idaho politics, he is a staunchly conservative Republican in tune with his constituents, but he has never caused anyone to question whether he is tethered to reality. He is not typically prone to conspiracy theories or the other fever dreams that haunt the far right.
But even Bruce Otter has recently felt politically compelled to sign nullification legislation declaring that the federal government lacked the constitutional authority to enforce gun-control legislation within Idaho’s borders. And, really, he had little choice. The Idaho nullification statute passed the legislature unanimously.
For sure, in any constitutional showdown, neither Kansas, nor Idaho, nor the other red states that have embarked on this fool’s errand will prevail. The federal government has the authority to ensure that the laws it enacts are duly enforced in all 50 states.
The neo-nullificationist movement, however, represents a dangerous trend. Grassroots conservatism is no longer part and parcel of mainstream American life. For there is nothing about nullificationist ideology that represents American values. It is the failed constitutional theory of a treasonous movement — Southern secession. Its modern-day resuscitation can only be seen as a kind of existential alienation on the right.
I am grateful to see Nikki Haley and Mitt Romney and other Republican leaders finally take a stand on the Confederate flag. It is an unambiguous symbol of hate and sedition and needs to be retired to a museum where its true place in American history might be explained.
But Republicans must go beyond the flag debate to confront the simmering ideological stew on the far right. The idea of nullification in its own way is equally odious. It is a failed constitutional theory that should likewise be banished to a museum of legal antiquities. It has no place in modern-day America. It is frightening that such an idea has captured the imagination of so many Republican legislators. It is an idea that the national GOP leadership should repudiate, and soon. Jeb Bush, Scott Walker, and the rest of the candidates, we’re talking to you.