Thursday, February 3, 2011

State's Rights, Nullification and Civil War

In 1832 South Carolina passed state legislation to nullify a federal tariff law passed in 1828. That legislation to nullify federal authority thereby brought the issue of State's Rights vs. Federal Supreme Authority to the center of the American politics.

The Tariff Act of 1828 was a federal tariff that attempted to form a compromise between opposing regional views on tariffs and free trade. Provisions of the compromise angered people on all sides of the debate and led to heated arguments of State's Rights over nullification of the federal law.

While many southern states sympathized with South Carolina, they were not prepared to join South Carolina to secede from the union over the issue of tariff nullification. This, combined with the threat by President Jackson to send federal troops into South Carolina, compelled state's leaders to seek a compromise tariff law which defused the situation.

The Crisis of 1832 was the first spark of debate over Federal Supreme Authority vs. State's Rights to nullify federal authority that smoldered for twenty eight years as southern states saw northern states gaining the upper hand in abolishing slavery through federal mandate. Southern states increasingly talked of their right to nullify federal authority, if the northern states gained enough votes in Congress to pass legislation abridging "their right" to maintain slavery.

The November 1860 election of Abraham Lincoln, who southerns regarded as an abolitionist, precipitated the secession of the Southern States from the Union. Seeing Lincoln as an abolitionist who would abolish their "state's right" to slave ownership, South Carolina and other southern states claimed they had a right reserved to the states to secede from the union.

By February 1861 South Carolina convened a constitutional convention with six other states to establish the Confederacy. The majority of the Southern leaders who attended the convention expected a peaceful secession; they did not anticipate that their action would lead to bloody conflict. They were wrong and the bloody four year war was consummated in the afternoon of April 12, 1861 when South Carolina militia under Brigadier-General Beauregard, commanding the Provisional Forces of the Confederate States, opened cannon fire on Fort Sumter.

Gov. Perry has many times referenced the Ten Amendment to defend the concept of State's Rights Supremacy over Federal Authority. In July 2009 Perry invoked the 10th Amendment to the U.S. Constitution to reject health insurance reform and suggested other states would do the same. Several Texas Republicans filed legislation for the 2011 Texas legislative session aimed at reaffirming states’ rights and providing a constitutional mechanism to annul federal laws and regulations. Conservative Republican lawmakers in Idaho are moving forward with federal law nullification legislation, as are Conservative Republican lawmakers in other states.

Members of the Arizona Legislature, led by Republican Senate President Russell Pearce, have introduced a bill that attempts to grant the state the power to ignore federal laws it does not want to comply with.

If passed and signed into law, Senate Bill 1433 would create a 12-member committee within the state legislature with the power to review and recommend to the full Legislature laws they think are unconstitutional. The full Legislature would then have the power to nullify the federal statute by a majority vote.

The legality of the proposed legislation is questionable, as it runs counter to Article VI, Clause 2 and the 14th Amendment of the United States Constitution, which have been interpreted as making federal law trump state law.

Article VI of the Constitution, commonly known as the Supremacy Clause, states that, "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

Likewise, in a set of decisions that has come to be known as the "incorporation doctrine", the Supreme Court of the United States routinely ruled that the due process clause of the 14th Amendment prevents state and local governments from violating most provisions of the Constitution's Bill of Rights.

Senate Bill 1433 is not the only piece of legislation in the Arizona legislature that conflicts with the 14th Amendment. In January, members of the Arizona House of Representatives introduced legislation that seeks to eliminate the long-standing 14th Amendment guarantee that all people born in the US and under its jurisdiction are citizens of the US.

"Babies born to illegal alien mothers within US borders are called anchor babies because under the 1965 immigration Act, they act as an anchor that pulls the illegal alien mother and eventually a host of other relatives into permanent US residency," Senate President Pearce's website stated.

"With illegal aliens who are unlawfully in the United States, their native country has a claim of allegiance on the child. Thus, the completeness of their allegiance to the United States is impaired, which therefore precludes automatic citizenship."

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