Union and States' Rights: A History and Interpretation of Interposition, Nullification, and Secession 150 Years After Sumter

by Neil H. Cogan (Editor)

Overview

The third book in the &LAW series addresses the perpetual issue of state sovereignty in the federal union-'states' rights.' From the 1770s, through the Confederate states' secession, and continuing until now, a central issue of governance is state power to object to, cancel, or be immune from federal law. The issue is fervently debated in the political arena by Tea Party efforts to limit federal intervention in education and health care; and the nullification movement efforts to prevent federal gun control and marijuana regulations. And it is a linchpin of the Supreme Court's ruling on the Voting Rights Act. This volume provides an intelligent voice in the debate about states' rights-interposition, nullification, secession, constitutional amendment-150 years after Fort Sumter.

Product Details

ISBN-13:	9781937378394
Publisher:	University of Akron Press, The
Publication date:	10/15/2012
Series:	&Law
Sold by:	Barnes & Noble
Format:	eBook
Pages:	224
File size:	736 KB

About the Author

Neil H. Cogan has been on the faculty of Whittier Law School since 2001. He was Dean of the Law School and Vice President for Legal Education for the College from 2001 to 2009. During his deanship, the Law School established the Center for International and Comparative Law, the Institute for Legal Writing and Professional Skills, the Institute for Student and Graduate Academic Support, the Institute for Trial Advocacy, and six Summer Study Abroad Programs.He has edited books and written articles on constitutional law, civil rights, and civil and criminal procedure; his "The Complete Bill of Rights" (1997) has been frequently cited by the United States Supreme Court and in the scholarly literature. With former dean Don Lively, he is at work on a new form of case book to be published by Aspen Press.

Table of Contents

Contributors ix

Acknowledgments xi

Introduction Neil H. Cogan 1

Part I James Madison's Views

1 "A Real Nondescript:" James Madison's Thoughts on States' Rights and Federalism Jack N. Rakove 13

2 James Madison and the Constitution's "Convention for Proposing Amendments" Robert G. Natelson 30

Part II Antebellum Arguments

3 States' Rights, Southern Hypocrisy, and the Crisis of the Union Paul Finkelman 51

4 Still Too Close to Call?: Rethinking Stampp's "The Concept of a Perpetual Union" Daniel W. Hamilton 80

5 Secession and Breach of Compact: The Law of Nature Meets the U.S. Constitution Stephen C. Neff 88

6 William Rawle and Secession: Legal Rights and Political Wrongs H. Jefferson Powell 111

Part III Impact of the 14th Amendment

7 The 14th Amendment and the Unconstitutionality of Secession Daniel A. Farber 129

Part IV Contemporary Views of Interposition, Nullification, and Secession

8 Interposition: An Overlooked Tool of American Constitutionalism Christian G. Fritz 165

9 Originalism's Limits: Interposition, Nullification, and Secession Lee J. Strang 204

Part V Critical Views of Federalism, States' Rights, and Memories of Secession

10 Union and States' Rights 150 Years After Sumter: Some Reflections on a Tangled Political and Constitutional Conundrum Sanford V. Levinson 237

11 Remembering Our Second Revolution: Sesquicentennial Reflections on Civil War Historiography Norman W. Spaulding 260

Index 286

What People are Saying About This

R. Kent Newmyer

"Before it became a grim reality in 1860 and 1861, secession (including interposition and nullification) was a hotly debated topic among constitutional theorists, a bargaining chip used by Southern states rights politicians; for plain folk of the old South it was a commonly accepted proposition and a source of sectional self-identification. This fine collection of essays—some original, some synthetic, and all clearly argued—captures the nuanced and multidimensional nature of the subject that undelay so much of antebellum and Civil War history and historiography. Established scholars and students alike will find much to admire." --R. Kent Newmyer, Professor of Law and History, University of Connecticut Law School

Randy E. Barnett

"Did states ever have a right to secede from the Union? Could they nullify unconstitutional laws? Raising the deepest issues of constitutional law and theory, these questions go to the core of today's debates over federalism. With its diverse line-up of historians and constitutional scholars examining these issues from every angle, all future debates over secession and nullification must start with this book." --Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center

Stanley N. Katz

"No other country has tied itself as tightly to written constitutional limitations on government, nor is there any country in which (as Tocqueville observed long ago) the gravest political controversies are ultimately expressed in constitutional terms. There are some great virtues to American constitutionalism, despite our excessive commitment to textual literalism. But the text frequently gets us into terrible difficulties, and none has been more anguished than our uncertainty about the constitutional status of the federal union. Is the Constitution a compact among the several states, and therefore revocable if the terms of the compact are violated? Or did the Framers and the states that ratified the Constitution create a truly national entity? If so, what are the limits of national control over state affairs? This conflict was of course at the heart of America's most profound crisis, the Civil War. But the point of this superb collection of essays is to suggest that constitutional contestation over the nature and limits of federal power is still very much the leading source of constitutional uncertainty in these United States." --Stanley N. Katz, Professor in Public and International Affairs and Director, Center for Arts and Cultural Policy Studies, Princeton University

Editorial Reviews

"Did states ever have a right to secede from the Union? Could they nullify unconstitutional laws? Raising the deepest issues of constitutional law and theory, these questions go to the core of today’s debates over federalism. With its diverse line-up of historians and constitutional scholars examining these issues from every angle, all future debates over secession and nullification must start with this book."
--Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center

"No other country has tied itself as tightly to written constitutional limitations on government, nor is there any country in which (as Tocqueville observed long ago) the gravest political controversies are ultimately expressed in constitutional terms. There are some great virtues to American constitutionalism, despite our excessive commitment to textual literalism. But the text frequently gets us into terrible difficulties, and none has been more anguished than our uncertainty about the constitutional status of the federal union. Is the Constitution a compact among the several states, and therefore revocable if the terms of the compact are violated? Or did the Framers and the states that ratified the Constitution create a truly national entity? If so, what are the limits of national control over state affairs? This conflict was of course at the heart of America’s most profound crisis, the Civil War. But the point of this superb collection of essays is to suggest that constitutional contestation over the nature and limits of federal power is still very much the leading source of constitutional uncertainty in these United States."
--Stanley N. Katz, Professor in Public and International Affairs and Director, Center for Arts and Cultural Policy Studies, Princeton University

"Before it became a grim reality in 1860 and 1861, secession (including interposition and nullification) was a hotly debated topic among constitutional theorists, a bargaining chip used by Southern states rights politicians; for plain folk of the old South it was a commonly accepted proposition and a source of sectional self-identification. This fine collection of essays—some original, some synthetic, and all clearly argued—captures the nuanced and multidimensional nature of the subject that undelay so much of antebellum and Civil War history and historiography. Established scholars and students alike will find much to admire."
--R. Kent Newmyer, Professor of Law and History, University of Connecticut Law School

From the Publisher