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The dispute over the Tariff of 1828 marked a turning point for interposition. State legislatures passed resolutions declaring protective tariffs unconstitutional, increasingly using more threatening language that echoed the doctrine of nullification John C. Calhoun advanced in the South Carolina Exposition of 1828. Calhoun’s arguments distorted Madison’s views and transformed traditional sounding the alarm interposition into an option for each state to nullify acts of the national government that it considered unconstitutional. Nullification prompted a national discussion about the nature of the Union, notably in the Webster–Hayne debate in the United States Senate in 1830. Nullifiers quoted the Virginia and Kentucky Resolutions and Madison’s Report of 1800 to justify their constitutional theory, but misunderstood Madison’s theoretical right of the people to interpose in the final resort and overlooked the sounding the alarm interposition of the resolutions. Madison rejected both nullification and secession and tried to explain what he meant by a complex federalism based on divided sovereignty, ultimately failing to correct misconceptions about his resolutions.
The Civil War marked the high point of state interposition resistance to the Union or Confederate governments. Sounding the alarm interposition occurred wherever governors and legislators believed their national government had exceeded its powers, particularly with the use of martial law, suspension of the writ of habeas corpus, and wartime conscription. Moreover, Lincoln’s use of emancipation as a war measure was criticized in North and South as going beyond the effort to preserve the Union and instead converting the war into an abolitionist-inspired moral crusade to end slavery and expand Black rights. After the Civil War, opposition mounted in state legislatures in the North and South to the Thirteenth, Fourteenth, and Fifteenth Amendments, Reconstruction policies, racial equality, and enhanced national power. The slogan of states’ rights was adopted by those who denied the outcome of the Civil War and by advocates of white supremacy. By the end of Reconstruction, interposition essentially died out, tainted with the discredited notion of nullification, secession and the Civil War, and lay dormant before its reemergence in the twentieth century.
President Andrew Jackson’s Proclamation of 1832 rejected the South Carolina Ordinance of Nullification and rejected secession as a constitutional right. South Carolina’s legislature passed a Counter-Proclamation that citizens of states owed their chief allegiance to their sovereign state and not the national government and were duty-bound to maintain sovereign states’ rights. Increasingly, Americans failed to find common ground in their understanding of constitutional history. Enforcement of the Constitution’s Fugitive Slave Clause generated important Supreme Court cases such as Prigg v. Pennsylvania (1842) and Ableman v. Booth (1859) as Southern states sought to enforce the Slave Clause through federal legislation such as the Fugitive Slave Act of 1850. Northern states responded by passing personal liberty laws to resist the enforcement of federal laws that would extend the authority of enslavers beyond the South. Southern states considered these personal liberty laws a nullification of federal law and as intended to eradicate slavery. The Kansas–Nebraska Act of 1854 and the election of Abraham Lincoln in 1860 moved the nation beyond interposition towards secession and civil war.
Remedies evolve from the procedures that courts apply. Common law courts historically divided their decision-making functions between judge and jury; the judge defined the questions for the jury to answer, which the jury then decided. This system is still generally regarded as an acceptable method of determining criminal liability; however, randomly selected ad hoc bodies, such as juries, cannot supervise the performance of contracts, ensure compliance with injunctions, or take complex accounts. Judges, assisted by court officers, are better equipped to order these kinds of remedies, all of which require the cooperation, however reluctant, of the defendant. Equitable remedies grew out of the practice of chancellors, sitting without a jury but assisted by clerks and masters, exercising continuing supervision of matters that were sufficiently complex to require more than the parties having a ‘day in court’. One example is the very old case of Hewett v Hewett where the Court had to determine which timber on a property the plaintiff would be allowed to cut down. This matter had to be decided from time to time, for the rest of his life
Chapter 5 looks at deliberations. The traditional view of deliberations is that jurors are capable from the moment they are selected to deliberate in a way that yields a fair and just verdict. In contrast, the transformation view recognizes that jurors must perform a task for which they have not volunteered; they must be aware of their personal biases and try not to be swayed by them; they must deliberate to try to reach a unanimous verdict with a group of strangers; and they must decide the facts and apply the law even though both are new to them. However, the experiences they have gone through as jurors have helped to prepare them to deliberate. In addition, the setting and structure of the deliberations help them to maintain the necessary discipline. The jurors are secluded in the jury room; they are required to vote and to give reasons to the group; if unanimity is required they must come to a group understanding; and they must make a decision that has serious consequences. There are features of deliberations that help jurors to assume their role as jurors, such as having a foreperson, a diverse jury, a group deliberation, and the judge's instructions.
The last chapter discusses the major contentions leading up the civil war, that is, state rights and slavery. The first part focuses once again on the disagreement over the proper definition of the people. On the one hand, excerpts from John Calhoun’s writings demonstrate the Southern emphasis on state rights and his idea of the concurrent majority. On the other hand, Henry Clay’s speech on the Compromise Tariff Bill reveals his dedication to the Union and embrace of compromise as the founding principle of the United States. Daniel Webster’s Constitution and Union Speech gives insight into his controversial support of the Fugitive Slave Act in the name of constitutional obligations. The second part presents the arguments of the moral abolitionists, with excerpts from the American Anti-Slavery Society, William Lloyd Garrison, and Frederick Douglass. In turn, the Southern reactionary defense of slavery is illustrated in selections from George Fitzhugh’s Sociology for the South and Hammond’s “mudsill theory.” The last section of the chapter offers excerpts of Abraham Lincoln’s speeches, exhibiting his political pragmatism on the question of slavery and the maintenance of the Union.
The chapter focuses on the renewed campaign by Southerners to enforce the Fugitive Slave Act in the Free Soil Region, from which few fugitives had hitherto been recovered. The law’s passage triggered a storm of indignation across the region as communities gathered in public meetings and pronounced the law void and of no force. Nevertheless, the law emboldened slaveholders to pursue fugitives from enslavement who had taken refuge in abolitionist strongholds in the Upper North. In response, Underground activists took pains to publicize their activities and promised to protect fugitives who settled within the United States. As slave catchers ventured into the region, a series of spectacular public rescues garnered national attention. These large-scale acts of outright defiance revealed the determination of the region’s residents to defend the “free soil” of their communities by violence if necessary. Free Soil residents gathered in interracial crowds numbering in the thousands to confront slave catchers, humiliate those cooperating with the law, and punish those who performed the violence of mastery within their communities.
Chapter 5 demonstrates that the constitutional crisis over slavery reached the point of no return by 1860. Having no prospect of gaining majorities in Congress, the Southern minority believed that the presidency offered the main protection for slavery. Thus, Southerners were alarmed at the prospect of the election of Abraham Lincoln in 1860. They feared that his victory augured the beginning of a “dynasty” of antislavery presidents, who would abolish slavery. In response to the unprecedented event of the inauguration of an avowedly antislavery president, seven Southern states seceded. Citing compact theory, some Southerners claimed that secession was a constitutional right. In contrast, most Northerners rejected secession as an existential threat to the Constitution itself. Unfortunately, the Constitution permitted ambiguous readings of the matters in dispute. If the constitutionality of secession was uncertain, then so was federal coercion of the seceded states. If the states could not secede, but the federal government could not compel them to return to the Union, then the only solution was compromise. As the previous grand compromises had not solved the disputes surrounding slavery, there was widespread agreement that an amendment was necessary. Unfortunately, the Constitution made passing an amendment nearly impossible during a crisis.
Between 1822 and 1857, eight Southern states barred the ingress of all free black maritime workers. According to lawmakers, they carried a 'moral contagion' of abolitionism and black autonomy that could be transmitted to local slaves. Those seamen who arrived in Southern ports in violation of the laws faced incarceration, corporal punishment, an incipient form of convict leasing, and even punitive enslavement. The sailors, their captains, abolitionists, and British diplomatic agents protested this treatment. They wrote letters, published tracts, cajoled elected officials, pleaded with Southern officials, and litigated in state and federal courts. By deploying a progressive and sweeping notion of national citizenship - one that guaranteed a number of rights against state regulation - they exposed the ambiguity and potential power of national citizenship as a legal category. Ultimately, the Fourteenth Amendment recognized the robust understanding of citizenship championed by Antebellum free people of color, by people afflicted with 'moral contagion'.
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