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Friday, February 02, 2024

No, Nikki Haley, the Constitution Does Not Say That

No, Nikki Haley, the Constitution Does Not Say That

A soldier from the Texas National Guard, dressed in camouflage, puts up razor wire in El Paso.
John Moore/Getty Images

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If nothing else, it is historically fitting that a former governor of South Carolina would endorse the notion that a state can leave the American union of its own accord.

During an interview on Wednesday on “The Breakfast Club,” a morning radio show, Nikki Haley affirmed a state’s right to secede, in the context of the current standoff between Gov. Greg Abbott of Texas and the federal Border Patrol. “If that whole state says, ‘We don’t want to be part of America anymore,’ I mean, that’s their decision to make,” Haley said. “Let’s talk about what’s reality,” she added. “Texas isn’t going to secede.”

Later, when asked if she really agrees with the idea that states have a right to secede, Haley said that “states have the right to make the decisions that their people want to make.”

None of this is new for Haley. When asked during her 2010 campaign for governor if states had the right to leave the union, she said yes, “I think that they do. I mean, the Constitution says that.”

The problem for Haley, then and now, is that the Constitution does not say that. And if there is a right to secede, as a previous generation of South Carolinians learned the hard way, you won’t find it in our founding documents.

Secession, like its cousin nullification, rests on a mistaken conception of the American union. You see it in the opening lines of Governor Abbott’s news release rejecting the Supreme Court’s ruling that he could not keep federal agents from removing razor wire placed at the border with Mexico. “The federal government has broken the compact between the United States and the States,” Abbott wrote last week. “The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States, including immigration laws on the books right now.”

This is not new ground, either. The “compact” theory of the American union dates back to the Kentucky and Virginia Resolutions of 1798, issued in defiance of the Alien and Sedition Acts. Drafted, in secret, by Thomas Jefferson and James Madison, the resolutions made two major claims. First, that the Constitution was written as a compact between the states, and second, that the federal government had overstepped its bounds and was now in violation of that compact.

“They asserted,” Stanley Elkins and Eric McKitrick wrote in “The Age of Federalism: The Early American Republic, 1788-1800,”

that the Constitution to which the contracting states had assented delegated certain powers to the federal government, specifically enumerated, all others not so delegated being reserved to the states; that “in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the states … are in duty bound to interpose for arresting the progress of the evil” (Virginia Resolutions); and that with the Alien and Sedition Acts the federal government had exercised a power not only undelegated but “expressly and positively forbidden” in the First Amendment.

It’s too much to say that the resolutions made a splash. The immediate impact, if any, was to strengthen partisan feeling among the opponents of John Adams and the Federalists. None of the other state legislatures took the invitation to issue a concurrence. Still, the “compact theory” of the United States would enter the lexicon of constitutional politics, to emerge again more powerfully during antebellum battles over slavery and federal power.

Which is to say that the nature of the union remained a live question. In 1813, citing compact theory, the Virginia Supreme Court challenged the right of the U.S. Supreme Court to hear cases on federal law originating in state court. In 1816, the Supreme Court replied with its opinion in Martin v. Hunter’s Lessee, in which Justice Joseph Story established the court’s power of judicial review over state decisions and rejected compact theory. “The constitution of the United States was ordained and established,” Story wrote, “not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by ‘the people of the United States.’”

Three years later, in McCulloch v. Maryland, Chief Justice John Marshall bolstered Story’s attack on compact theory with his own. Yes, he wrote, the Constitution was ratified by the people in state conventions. But, he asked, “where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.”

When the people act, he continued, they act in their states, but “the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments.” The government, Marshall said, “proceeds directly from the people.” And while “the assent of the States in their sovereign capacity is implied in calling a convention,” the people themselves were also “at perfect liberty to accept or reject” the Constitution, and “their act was final.”

“The Government of the Union,” Marshall declared, “is emphatically and truly, a Government of the people. In form and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”

Marshall’s opinion was clear and persuasive. But it didn’t settle the issue. Compact theory reared its head again during congressional debates over the controversial tariff of 1828 — condemned as the “tariff of abominations” by its Southern opponents. Defending the tariff in a speech on the Senate floor in 1830, Daniel Webster took aim at Senator Robert Hayne of South Carolina, who held that the government was essentially one of states, not people. No, Webster said, it is “the people’s Constitution, the people’s government, made for the people, made by the people, and answerable to the people.” The states, while sovereign in their own spheres, “are yet not sovereign over the people.”

In 1832, after the passage of another protective tariff, the conflict over states’ rights and economic policy exploded into a full crisis over the doctrine of nullification, after South Carolina deemed the tariffs unconstitutional and thus void within its borders. The most radical proponents of nullification even argued that congressional failure to reform or repeal the tariffs would justify secession and the dissolution of the union. President Andrew Jackson, who otherwise held states’ rights in high regard, was not amused.

Not only did he reject nullification. He said, “Perpetuity is stamped upon the Constitution by the blood of our Fathers — by those who achieved as well as those who improved our system of free Government. For this purpose was the principle of amendment inserted in the Constitution which all have sworn to support and in violation of which no state or states have the right to dissolve the Union.”

From Story to Jackson we get the component parts of Abraham Lincoln’s argument against secession, which came in the wake of Jefferson Davis’s declaration — as the newly elected president of the Confederate States of America — that when “the compact of Union” had been “perverted from the purposes for which it was ordained,” the “government created by that compact should cease to exist.”

This, said Lincoln in his first inaugural address, is wrong. “The Union of these States is perpetual,” he said. “Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination.”

Lincoln would later elaborate on this view in a message to Congress on July 4, 1861. “The States have their status in the Union, and they have no other legal status. If they break from this, they can only do so against law and by revolution,” he wrote. “The Union, and not themselves separately, procured their independence and their liberty.”

Most important, Lincoln continued, “The Union is older than any of the States, and, in fact, it created them as States. Originally some dependent colonies made the Union, and in turn the Union threw off their old dependence for them and made them States, such as they are.”

The subsequent four years of bloodshed would settle the question. The United States was, as Lincoln declared in an echo of Webster, a government of the people, by the people and for the people. The Union was forever. And no state or states, on their own, could decide otherwise.

In other words, Nikki Haley is wrong, as is anyone else who treats secession or nullification as legitimate features of the American constitutional order. Greg Abbott is also wrong. The United States is not a compact.

This may all seem academic, but it isn’t. Behind the notion that the states are independent and sovereign is the idea that what happens within the borders of Ohio or Texas or Florida is of no concern to those within the borders of New York or California or Rhode Island. It’s the notion that it should be the right of a state to do as it pleases. If Oklahoma wants to regulate the bodies of its residents, then that is the business of Oklahoma.

To think of the United States as a single country formed by a single people is to suggest, by contrast, that we share some set of rights and responsibilities, privileges and obligations. That as diverse and fractured as we are, what happens to one part of us affects the whole.

The states are just lines on a map. What matters is that we share this country and, as such, we owe one another our attention, our care and our due regard.

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Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he was the chief political correspondent for Slate magazine. He is based in Charlottesville, Va., and Washington. @jbouie

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