Tenth Amendment Center: Speaking Truth on the History of “States’ Rights” and Slavery

From Tenth Amendment Center

...from Tenth Amendment Center

Most people’s political convictions resemble those of Captain Renault from the classic film Casablanca; it blows with the wind, and the prevailing wind happens to be not entirely hostile to states’ rights.

But that will likely change.

That’s why it’s important that the myths used to smear and tarnish a noble ideology by equating it with pro-slavery thought be refuted thoroughly. In a 2014 article for the City Journal titled “The Truth About States’ Rights,” Adam Freedman makes the compelling case that the initial wave of Southern secession in 1860 was in response to Northern states asserting their sovereignty over the issue of slavery so effectively that federal slavery laws were unenforceable.

“According to the standard version of history, states’ rights was a doctrine invented by Southern politicians to perpetuate slavery,” he writes. “But what if the lessons of history are wrong, and the doctrine of states’ rights was actually an antislavery ideology?”

Freedman offers a thoughtful question: From what federal law did states’ rights protect Southern slavery? All federal policy at the time was on their side.

The 1850 Fugitive Slave Act definitely violated states’ rights, but not the Souther slave states. It violated the sovereignty of states prohibiting the peculiar institution.

The law itself came about because “the Southern states didn’t celebrate these assertions of states’ rights,” Freedman writes. “To the contrary: they called on the federal government to crack down on the wayward states. The major states’ rights issue leading up to the war concerned the right of free states and territories to exclude slavery within their borders.

It is no wonder, then, that abolitionist poet John Greenleaf Whittier wrote the following in response to that policy:

Since the passage of the Fugitive Slave Law by Congress, I find myself in a position with respect to it which my fellow citizens are not prepared to justify. So far as that law is concerned, I am a nullifier. By no act or countenance of mine shall that law be enforced in Massachusetts. My door is still opened to the oppressed, whether fleeing from Austria or South Carolina.

In addition to Whittier, there was also abolitionist Carl Schurz, who gave his stirring “State Rights” speech in Milwaukee after the Supreme Court’s Ableman v. Booth decision.

Ironically enough, another states’ rights advocate was Abraham Lincoln. Like so many politicians today, he favored states’ rights when it suited him, and abandoned the idea when it was no longer useful.

Freedman also mocks modern law school portrayals of the Dred Scott decision as an “extreme example” of states’ rights. “That’s a little like calling Roe v. Wade an extreme example of pro-life jurisprudence.”

He writes further:

Up until the first shots were fired at Fort Sumter, slavery’s defenders were not known for resisting federal power. To the contrary, they had been exploiting federal power: to expand the reach of slavery, to enforce alleged federal rights to travel with (or capture) slaves, and to silence abolitionists. For decades, the slave interests had dominated Congress and the Supreme Court. The last thing they wanted was states’ rights—they owned Washington. When the South did embrace secession, it was not because the federal government had done anything to abolish slavery; rather, the election of Abraham Lincoln and the rise of the Republicans meant that the Northern states would be permitted to get away with what the South considered illegal nullification.

Of course, if none of this can convince someone that the “neo-Confederate” image is a total farce, then perhaps we’re dealing with a zombie.

Tom Woods can empathize.

One silver lining to Donald Trump’s presidency is that the phrase “states’ rights” no longer carries the same charge of “neo-confederate” that it did a few years ago. However, that is just because Trump critics have found uses for federalism to resist his agenda. It’s safe to say that once Democrats take over the White House, the principle will again fall outside the realm of allowable opinion.

TJ Martinell
April 23, 2018 at 12:50PM