6.3.1 Deep South (1831-1861): The Nullification Crisis

“The People of this State will thenceforth hold themselves absolved from all further obligation to maintain or preserve their political connexion with the people of the other States, and will forthwith proceed to organize a separate Government, and to do all other acts and things which sovereign and independent States may of right do.” – Ordinance of 1832 South Carolina Convention

“[T]his State owes a duty to the Union, above all minor considerations … [S]he prizes that Union less than liberty alone.” – Mississippi Legislature, resolution responding to the South Carolina ordinance (1833)

Judicial Federalists in the Deep South

State ex rel. McCready v. Hunt – South Carolina, 1834 (2 Hill 1); Campbell v. State – Georgia, 1852 (11 Ga. 353)

  • Conflict between advocates of centralized and decentralized government has been a central feature of American political discourse throughout the nation’s history.  During the debates over ratification of the U.S. Constitution (1788), federalists argued that the new central government derived its power directly from the people; antifederalists viewed it as a creature of the states. 
  • The debate regularly rekindled until the Civil War put it to rest.  In 1799-1800, Virginia and Kentucky asserted that as independent states they had the right to declare the federal Alien and Sedition Acts unconstitutional (§§ __); in 1816, Justice Spencer Roane of Virginia defied federal decisions upholding British land titles in his state (§ __); and in the early 1830s, Tennessee and Georgia pushed the Cherokee and Creek tribes off of land wanted for white settlement in defiance of federal treaties and over the objection of the U.S. Supreme Court (§§ ___).   
  • The most serious crisis arose after Congress enacted in 1828 a harsh tariff law that protected northern manufacturers but made it difficult for Southern planters to get foreign goods, on which they relied heavily, at reasonable prices.  The tariff’s bite was such that in 1832 a South Carolina convention, called by the legislature, denounced federal oppression and adopted a “nullification” resolution stating that South Carolinians should not pay the tariff duties – and further, that South Carolina, as an independent state, could ignore federal laws and even separate from the Union whenever it chose. 
  • The resolution met strong opposition in the north and in many parts of the South; President Andrew Jackson threatened to send troops to South Carolina and hang leaders of the rebellion if necessary to enforce the law.  Both sides eventually toned down their rhetoric and the tariff law was softened, but the option of secession was now out in the open, and South Carolinians did not forget it.
  • There was opposition to nullification even within South Carolina.  In McCready, a Unionist militia officer refused to take the oath of allegiance prescribed by the convention which omitted any reference to allegiance to the United States.  All eyes in the state focused on what the supreme court would do.  After much delay, each of the court’s three members issued an individual opinion reflecting his internal struggle between loyalty to South Carolina and loyalty to the ideals of liberty and law embodied in the U.S. Constitution.    Chief Justice John O’Neall was skeptical of oaths of allegiance generally, commenting that they were “an unfit garb to clothe the Republican.”  He steered a middle course, holding that South Carolinians owed allegiance to both and state and federal governments “to the extent of the constitutional powers conferred on each,” and he concluded that the convention could not override the dual oath of loyalty to state and federal government prescribed in South Carolina’s constitution.  Justice David Johnson agreed with O’Neall, but suggested that South Carolina had the power to secede if it wished. 
  • Only Justice William Harper endorsed the nullificationists’ view that the federal government is a creature of the states, not the people directly.  Harper agreed that the state could secede if a state-federal conflict became “final and irreconcilable.”  Soon after the justices gave their opinions the legislature reorganized the court system, largely due to unhappiness with those opinions and with the court’s perceived liberalism in other cases involving slave law.
  • No other Deep South court had to address such a dramatic clash between state and federal authority during the antebellum period, but other federalism issues did arise – most commonly, whether federal river and harbor regulations priority when they conflicted with state regulations.  In such cases, Southern judges were decidedly more federalist than their constituents.  Campbell is a leading example:  in that case, Georgia Chief Justice Joseph Lumpkin – a stout defender of slavery – held that federal regulations took priority in all areas involving interstate trade and went so far as to endorse the federalist view that the national government was a creation of the American people apart from the states.            

“We owe allegiance or obedience to both governments, to the extent of the constitutional powers conferred on each.”  - Chief Justice John B. O’Neall, in McCready

“[I]n the angry discussion which has grown out of this controversy, and which is still continued with increasing animosity, all the bad passions of the human heart have been excited to the highest pitch, and want nothing but an exciting cause to call them into action. … That [United States] government is, ,to all intents and purposes, as much the government of the people of South Carolina, as the State government.  They have both received their sanction, and they have consented to be bound by them … to demand the allegiance of the citizen to one, only and exclusively, is to require of him only half of his duty.”  - Justice David Johnson, in McCready

“Only in the case of a final and irreconcilable conflict of authorities, [the South Carolinian’s] first duty will be due where nature and right feeling would direct it – to the immediate community in which he lives, and to which he is united by his most intimate associations.  I conclude that under the fed constitution the allegiance of the citizen is due to the State.” – Justice William Harper, in McCready

“We have but one people … which, divided into separate communities, constitute the respective State governments [and] comprise in the aggregate, the United States government.”  - Chief Justice Joseph Lumpkin, in Campbell