On May 31, 2015 the New York Times Times announced the end of its popular “Disunion” blog, dedicated to the Civil War, which had run for the previous four years. Two weeks later, Donald Trump descended the escalator at Trump Tower, setting in motion a series of events that would reveal a contemporary America arguably as prone to disunion as we have been at any time since the Civil War.
Disunion may seem like a curious name for a blog about the war, but it was actually the name used by an entire movement of Northern abolitionists in the decades leading up to the Civil War. This group was the most prominent of those seeking to split up America over the question of slavery. Abolitionist “disunionists” were, after the founders themselves who separated from Britain, America’s original secessionists.
The fact that the leading historic advocates of high-stakes political strategies such as disunion were not, in fact, Confederate secessionists but abolitionists has been quite intentionally obscured by the left-wing academic and cultural establishment. They seek to associate ideas that enhance local autonomy and popular sovereignty, especially on the Right, with unpopular causes. This is why, when discussing the possibilities, the term disunion is preferable to “secession” or “national divorce,” both of which are laden with negative moral or historical associations—something that distinguished historian Victor Davis Hanson understood well, when he recently labeled the totalitarian-Left regime as “The New Blue Confederacy.”
But political tools such as nullification, rejection of judicial supremacy, or disunion are neither good nor evil in and of themselves. They are simply tools, each with its own particular history within American statecraft. Their moral salience depends entirely on the ends for which they were and are used. While tools such as nullification or disunion must be approached with caution, they should not be discarded a priori either on historical or moral grounds.
What follows is an examination of the real history of these tools, and how the Right might use them effectively.
Nullification is a broad concept, but one that generally refers to a state’s ability to invalidate a federal law within its borders if the state believes a law is unconstitutional. It has a long history in the United States, having been first proposed by Thomas Jefferson and James Madison in the 1798 Virginia and Kentucky Resolutions.
Likewise, nullification has been rejected by the Supreme Court with as much energy as it was proposed—a rejection that is itself contested, and even more problematically, selectively applied.
In the early 19th century, the most prominent advocate of nullification was John C. Calhoun, who advanced arguments that benefitted slaveholding states—a fact always stressed by nullification’s opponents. But the key cases of nullification in the mid-19th century involved northern states attempting to thwart the Fugitive Slave Act, a federal law that required states to return escaped slaves to the South.
While Calhoun’s nullification crisis with the Jackson Administration would ultimately be settled in Congress, the U.S. Supreme Court in Ableman v. Booth (1859) for the first time explicitly rejected the principle of nullification. Ableman overturned a Wisconsin Supreme Court decision, which declared the federal government had no authority to overrule that state’s determination that the Fugitive Slave Act was invalid in Wisconsin. Ableman is considered perhaps the most important judicial repudiation of nullification, and it was done in the name of slave power.
Yet despite the court’s ruling on nullification, the truth is that federal blocking of nullification has been sporadic and haphazard—with marijuana legalization, healthcare exchanges, and gun rights among the policies states have most recently attempted to nullify federal law. Between 2010 and 2016 there were over 1,500 nullification procedures endorsed in various state legislative proposals, 11 percent of which were enacted into law. Four-fifths of states have enacted policies that have nullified federal law in recent years.
Opposing Judicial Supremacy
Ableman v. Booth was notable not simply as touchtone for the repudiation of nullification but for its implicit declaration of judicial supremacy. It proclaimed not only that the Constitution was supreme over state law but that the Supreme Court was the sole, final arbiter of what the Constitution said. But this assertion of judicial supremacy was only made explicit under the liberal Warren court in the 1958 case of Cooper v. Aaron. It is notable the Supreme Court picked the morally sympathetic issue of civil rights and desegregation to justify its own power grab.
But the court’s power play was hardly uncontested. Edwin Meese, while serving as Ronald Reagan’s attorney general, criticized Cooper v. Aaron in a high-profile speech, claiming that court decisions should only bind the applicants in a particular case, not create a general presumption about the supreme law of the land.
Meese drew a distinction between constitutional supremacy and judicial supremacy, and it is notable that he drew substantial support in this position from scholars on both sides of the aisle. Cooper v. Aaron, he insisted, “was, and is, at war with the Constitution, at war with the basic principles of democratic government, and at war with the very meaning of the rule of law.” Meanwhile, Lloyd Cutler, who served as White House counsel to President Jimmy Carter and again to President Bill Clinton, noted that “FDR’s attorney general in 1936 would have agreed with every word” of Meese’s speech.
The ideology behind Meese’s rejection of judicial supremacy goes back further than FDR. In the famous Dred Scott case, Abraham Lincoln made an almost identical argument to Meese’s while it was his opponent Stephen Douglas who stood for unfettered judicial supremacy. As noted constitutional scholar Michael Paulsen observed, “Lincoln stood for constitutional supremacy, and against the prospective binding authority of the Supreme Court’s betrayal of the Constitution in Dred Scott v. Sandford.”
Lincoln would do the same in defying Ex Parte Merryman, which attempted to limit the president’s authority to hold enemy prisoners during the Civil War.
In the view of Harvard Law School’s Noah Feldman, the Emancipation Proclamation itself was a constitutional violation. But it was certainly not a moral one.
As Paulsen wrote, “it seems fair to say that one cannot embrace the modern view of reflexive judicial supremacy without simultaneously opposing nearly everything Lincoln said and did as President.”
If nullification and judicial supremacy have been treated dishonestly by the Left, then the concept of disunion has been even more abused. While clearly a policy of last resort and not one endorsed by this author in our current situation, much of the refusal of some on the Right to even consider disunion is not the result of a serious and sober study of our current political situation, but instead a sort of political wishcasting.
As leading disunion advocate Dave Reaboi wrote, responding to National Review’s Rich Lowry’s harsh criticism of his argument:
Can we all admit that nothing human lasts forever, including the United States? If we can (and we should), we must slowly grope at a point at which the country is truly changed fundamentally, and a return to constitutional government . . . is impossible. What then? Does Lowry admit this is a possibility? No, because that’s what ‘giving up on our birthright’ means to him; it means being stuck on the sinking ship, forever, impotently yelling stop—and believing so furiously that you sink along with it.
More importantly, Reaboi and others note, disunion (which he calls national divorce) is more a concept at this point than a political program.
“National divorce isn’t an immediate action plan,” he writes. “Rather it is a rhetorical strategy to prepare the ground for crucial discussions about what comes next in America, as the country grows ever more divided, bitter, and angry. More than anything else it is a reminder for Red America to think about economic and cultural autonomy for itself and what it would take to get there.”
Nor is disunion morally dubious: In fact, its earliest proponents were some of the most heroic Americans of their era, including America’s most important abolitionists, most notably William Lloyd Garrison, founder of The Liberator, America’s most important anti-slavery publication, whose masthead read “No Union with Slaveholders.”
So outraged was Garrison by slavery that his critiques of the pre-Cvil War Constitution as written go far beyond all but the most extreme modern critics on the Left or Right. Garrison referred to the Constitution’s implicit sanction of slavery as a “Covenant with Death” and an “Agreement with Hell.”
Garrison’s views weren’t idiosyncratic. The American Antislavery Society, the most important anti-slavery group in the United States, voted overwhelmingly for disunion in the 1840s. Horace Greeley, the famous anti-slavery editor of the New York Tribune who would be the Democratic nominee for pPresident in 1872, also supported the right of dDisunion, which he explicitly compared to the process of American Independence. Wendell Phillips, perhaps the preeminent figure in the abolitionist movement, argued, “it is impossible for free and slave states to unite on any terms, without all becoming partners in the guilt and responsible for the sin of slavery.”
Phillips further argued in support of disunion: “The abolitionists of this country should make it one of the primary objects of their agitation, to dissolve the American Union . . . [S]ecession from the present United States Government is the duty of every abolitionist.”
That it was abolitionists who led the charge for disunion was acknowledged by a pro-Union and pro-slavery newspaper in Kentucky in 1861.
“For years, the abolitionists have hated and cursed the Constitution of the United States, because that alone stood in the way of their fiendish purposes. They were the first and the most venomous disunionists,” the paper editorialized.
Clearly, the notion that support for disunion makes one a racist or neo-confederate is wholly untethered from history.
There are, of course, entirely reasonable and practical objections to disunion: Red and blue states and communities are intermingled, we have an interdependent financial system, etc. Garrison outlined his own response to the practical considerations of disunion in his own day in a speech on disunion in June 1855:
We are asked, ‘How is the dissolution of the Union to be effected? Give us your plan!’ My answer is, whenever THE PEOPLE are ready for Disunion, they will easily find out a way to effect it. . . . Our preliminary work is, not to construct a new government, but first of all to make every Northern man see and confess, that our boasted Union is a snare, a curse, and a degrading vassalage;–in strict verity, that there is no Union for freedom to be dissolved, but ONE TO BE CREATED. . . (all emphases in the original)
And indeed, the Right should emulate Garrison’s reply as it seeks greater autonomy from the increasingly oppressive and maniacal blue state regime. We do not need to formulate a specific policy strategy today. But we should not apologize for representing the interests of ourselves and our voters. Nullification, rejection of judicial supremacy, and even ultimately disunion are simply tools, nothing less, nothing more. If they are used to preserve our freedoms and our independence, they are entirely worthy.
We should unreservedly reject the Left’s attempt to morally blackmail us by pretending that these tools are illegitimate. Certainly, neither the abolitionists nor President Lincoln himself allowed their political enemies to set the terms of the debate. Whatever fate awaits the American Right, we will decide it ourselves. Regardless of our choices, in 2021 there is no longer a union for those who love freedom to be dissolved. There is one to be created.