Opinion

The misunderstood history of nullification

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Mike Maharrey
Communications Director, The Tenth Amendment Center
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      Mike Maharrey

      Mike Maharrey serves as the national communications director for the Tenth Amendment Center. He is also the author of Our Last Hope: Rediscovering the Lost Path to Liberty. You may contact Mike at: michael.maharrey@tenthamendmentcenter.com.

Could the recent Supreme Court ruling on the federal health care act bring conservative Republicans back to their state-sovereignty, nullification roots?

It just might.

Last week, two major conservative publications — National Review and The American Spectator — featured stories flirting with nullification. On top of that, millions of conservative Republicans got a nullification lesson on Thursday when Walter Williams guest-hosted “The Rush Limbaugh Show.”

Many Americans associate nullification with racism, because they think Southern states used the principle to protect slavery. In fact, northern abolitionists advanced nullification and appealed to “states’ rights” in their battle against fugitive slave laws. And while modern Republicans generally respond tepidly to the idea of nullification, their party was born out of a nullification fight in Wisconsin, a historical fact that long ago fell down an Orwellian memory hole.

Historically speaking, the Republican Party is the party of nullification.

In March of 1854, Benammi Stone Garland, two federal marshals and several others broke into the home of Joshua Glover. They clubbed him over the head, dragged him bleeding from his shanty and locked him up in the Milwaukee jail. Glover was an escaped slave, and Garland his “owner.” Legally, Garland had every right to take his “property” into custody and drag Glover back to Missouri. The Constitution provided for the return of escaped slaves. The Fugitive Slave Act of 1850 created the mechanism. The act denied due process to anyone accused of escaping slavery. Federal courts authorized the capture of fugitive slaves simply on the word of their “owners.” The accused weren’t even allowed to testify in their own defense. The Fugitive Slave Act was wildly unpopular and actively resisted in every northern state.

Wisconsinites quickly acted. Led by Sherman Booth, an abolitionist newspaper editor, several thousand people gathered on the steps of the Milwaukee courthouse. When a federal judge refused to release Glover on a writ of habeas corpus, the throng broke him out of jail and ushered him onto the famed Underground Railroad. Glover ultimately escaped to freedom in Canada.

The events of that spring day sparked a five-year battle between Wisconsin and the federal government. The feds charged Booth for violating the Fugitive Slave Act, but the Wisconsin Supreme Court freed him on a writ of habeas corpus, declaring the Fugitive Slave Act unconstitutional. Justice Abram Smith wrote, “Every jot and tittle of power delegated to the Federal Government will be acquiesced in, but every jot and tittle of power reserved to the States will be rigidly asserted.”

The aftermath of Glover’s escape led directly to the formation of the Republican Party. Anti-slavery meetings in the spring of 1854 spurred by the fight between Wisconsin and the federal government led to a statewide convention in July. The attendees formed a party and nominated candidates for the November elections. They called their new party “the Republican Party.” It flexed its muscle that fall, winning two of three congressional races and taking control of the Wisconsin legislature.

Republicans lost ground in 1855 when the party added temperance to its platform. But with the battle over slavery turning bloody in Kansas, Wisconsin Republicans turned things around in the 1856 elections. The fledgling party, promoting free soil and state sovereignty, took all three congressional seats, and grabbed firm control of the state assembly and senate. The Republican-controlled state legislature passed a resolution supporting the Wisconsin Supreme Court in nullifying the Fugitive Slave Act and interposing for Booth. It also defied federal law by passing a Personal Liberty Act. Among other things, the law gave county courts the power to issue writs of habeas corpus to fugitive slaves, made it the duty of district attorneys to seek their discharge and established fines of $1,000 for kidnapping free blacks.