Jun 24th 2015

Confederate Ideology and the Second Amendment

by Charles J. Reid, Jr.

Charles J. Reid, Jr. was born in Milwaukee, Wisconsin. He graduated from the University of Wisconsin-Milwaukee, where he majored in Latin, Classics, and History, and also did substantial coursework in classical Greek and modern European languages. It was during his undergraduate days that he developed an interest in canon law, doing a year of directed research in Roman and canon law under the supervision of James Brundage. Reid then attended the Catholic University of America, where he earned J.D. and J.C.L. (license in canon law) degrees. During his time at Catholic University, he organized a series of symposia on the bishops' pastoral letter on nuclear arms. The proceedings of these symposia were published under Reid's editorship as "Peace in a Nuclear Age: The Bishops' Pastoral Letter in Perspective" (Catholic University of America Press, 1986). This book was called by the New York Times "among the most scholarly and unsettling of responses" to the pastoral letter (December 28, 1986).Reid then attended Cornell University, where he earned a Ph.D. in the history of medieval law under the supervision of Brian Tierney. His thesis at Cornell was on the Christian, medieval origins of the western concept of individual rights. Over the last ten years, he has published a number of articles on the history of western rights thought, and is currently completing work on a book manuscript addressing this question.In 1991, Reid was appointed research associate in law and history at the Emory University School of Law, where he has worked closely with Harold Berman on the history of western law. He collaborated with Professor Berman on articles on the Lutheran legal science of the sixteenth century, the English legal science of the seventeenth century, and the flawed premises of Max Weber's legal historiography.While at Emory, Reid has also pursued a research agenda involving scholarship on the history of western notions of individual rights; the history of liberty of conscience in America; and the natural-law foundations of the jurisprudence of Judge John Noonan. He has also published articles on various aspects of the history of the English common law. He has had the chance to apply legal history in a forensic setting, serving as an expert witness in litigation involving the religious significance of Christian burial. Additionally, Reid has taught a seminar on the contribution of medieval canon law to the shaping of western constitutionalism.  Recently, Reid has become a featured blogger at the Huffington Post on current issues where religion, law and politics intersect.

"The idea of nullification in its own way is equally odious......... It is frightening that such an idea has captured the imagination of so many Republican legislators. It is an idea that the national GOP leadership should repudiate, and soon. Jeb Bush, Scott Walker, and the rest of the candidates, we're talking to you."

It is all to the good that the Confederate flag is now being seen as odious and hateful by most Americans. It truly has been a symbol of hate and injustice going all the way back. In the Civil War it was used to rally slave-holders and their sympathizers to battle. And in the segregationist South of the 1950s and 1960s, it was revived as a means of expressing resistance to the cause of civil rights and equality. It is time to strike those colors once and for all, remove them from the South Carolina statehouse grounds, expunge them from the Mississippi state flag, and banish them from any and all places of honor in American society.

But we should go deeper than asking for symbolic change, as important as that is. I'd like in particular to call attention to a troubling development found mostly in deep red, Republican states, and that is the unholy marriage between Confederate ideology and the Second Amendment.

The bond that unites Confederate ideology and the Second Amendment is the idea of "nullification." This is the belief that the states are the ultimate arbiters of what is or is not constitutional and that the states are thus always free to ignore federal law. States and not the courts, on this warped view of the Constitution, judge what is or is not constitutional.

This ideology has a long and deep and ignoble history. We might begin with John Taylor of Caroline (1753-1824), whom Garry Wills called "the principal theorist of nullification." He was a lawyer and a planter who sought to insulate his home state of Virginia from what he feared as early as the 1790s to be the growing, threatening powers of the national government.

The best way to defend Virginia, Taylor proposed, was to ensure that the states were the final word on what the Constitution meant. States, he argued, always retained the right, if not the responsibility, to disobey the federal government where they believed the federal government overstepped constitutional limits. Taylor meant by this doctrine to strengthen and make secure the system of slavery, from which he personally profited, since Virginia and the other Southern states would always be free to declare null and void any federal law infringing on slave-holders' "rights."

In the 1820s and 1830s, this proposal was worked into a full-blown constitutional theory by John C. Calhoun (1782-1850). Calhoun opposed the federal tariff that was then threatening the profitability of South Carolina's plantation-based way of life. Fearing the implicit threat to the slave-based economy, Calhoun insisted that South Carolina might declare the tariff unconstitutional.

South Carolina tried to do just that in 1832, but backed off this ledge when confronted with federal military intervention. South Carolina climbed back onto that ledge in 1860/1861 when it -- and other Southern states -- seceded from the Union.

These states acted as they did because they believed that the states might judge the federal government and withdraw from the Union as a last resort. Nullification, in other words, was a prominent feature of the constitutional theory that justified the Confederacy. It was a doctrine finally repudiated by the Civil War and by the ratification of the Fourteenth Amendment in 1868.

What does this history have to do with the Second Amendment? Simply this: Nullification, a concept that should have died a century and a half ago, has been resurrected from the tomb by gun-rights extremists and is triumphing in legislature after legislature in America's deep-red states.

Consider Kansas. Kansas under the leadership of Governor Sam Brownback, is well-known for its extremist politics. Brownback's fiscal policies have wrecked the Kansas economy, Kansas education, and much else. Brownback has sought steady reductions in the state income tax, substituting for it "the highest tax on food in the nation." And what does Kansas have to show for its regressive fiscal policy? While most regions of the United States are enjoying economic recovery, Kansas is not. In May, 2015, a report showed that Kansas lost "nearly 4,000 jobs ... trailing the national trend."

That is bad enough, a tragedy for the Kansans who are suffering under Brownback's misrule. But just as bad is the gun legislation he has signed. In 2013, the state legislature enacted the "Second Amendment Protection Act." By its terms, the legislation ostensibly prohibits the federal government from enforcing federal gun control laws on Kansas soil with respect to certain classes of weapons.

Alright, you might say, Brownback is an unrepentant extremist. But, unfortunately, Kansas is not an outlier. In recent years, other red states have followed a similar path. Bruce Otter is the 70-something governor of Idaho. He has spent a lifetime in Idaho politics, he is a staunchly conservative Republican in tune with his constituents, but he has never caused anyone to question whether he is tethered to reality. He is not typically prone to conspiracy theories or the other fever dreams that haunt the far right.

But even Bruce Otter has recently felt politically compelled to sign nullification legislation declaring that the federal government lacked the constitutional authority to enforce gun-control legislation within Idaho's borders. And, really, he had little choice. The Idaho nullification statute passed the legislature unanimously.

For sure, in any constitutional showdown, neither Kansas, nor Idaho, nor the other red states that have embarked on this fool's errand will prevail. The federal government has the authority to ensure that the laws it enacts are duly enforced in all 50 states.

The neo-nullificationist movement, however, represents a dangerous trend. Grassroots conservatism is no longer part and parcel of mainstream American life. For there is nothing about nullificationist ideology that represents American values. It is the failed constitutional theory of a treasonous movement -- Southern secession. Its modern-day resuscitation can only be seen as a kind of existential alienation on the right.

I am grateful to see Nikki Haley and Mitt Romney and other Republican leaders finally take a stand on the Confederate flag. It is an unambiguous symbol of hate and sedition and needs to be retired to a museum where its true place in American history might be explained.

But Republicans must go beyond the flag debate to confront the simmering ideological stew on the far right. The idea of nullification in its own way is equally odious. It is a failed constitutional theory that should likewise be banished to a museum of legal antiquities. It has no place in modern-day America. It is frightening that such an idea has captured the imagination of so many Republican legislators. It is an idea that the national GOP leadership should repudiate, and soon. Jeb Bush, Scott Walker, and the rest of the candidates, we're talking to you.




Related article on Facts & Arts:


Confederate Flags: A Day Late, A Dollar Short

by Jeff SchweitzerAdded 23.06.2015
"I told you so" just seems so inadequate. We needed a hideous  hate crime  for the nation to see the obvious; that any flag of the confederacy is a symbol of hate, bigotry and treason. I've been agitating to take down those flags for the past 15...

Nikki Haley's call to take down Confederate flag reveals ongoing shift in GOP strategy

by Joseph LowndesAdded 25.06.2015
This week in a televised press conference, Republican South Carolina Governor Nikki Haley called for the removal of the Confederate Battle Flag from the South Carolina Statehouse grounds. Before this week, Haley, like other Republican...


TO FOLLOW WHAT'S NEW ON FACTS & ARTS, PLEASE CLICK HERE!

 


This article is brought to you by the author who owns the copyright to the text.

Should you want to support the author’s creative work you can use the PayPal “Donate” button below.

Your donation is a transaction between you and the author. The proceeds go directly to the author’s PayPal account in full less PayPal’s commission.

Facts & Arts neither receives information about you, nor of your donation, nor does Facts & Arts receive a commission.

Facts & Arts does not pay the author, nor takes paid by the author, for the posting of the author's material on Facts & Arts. Facts & Arts finances its operations by selling advertising space.

 

 

Browse articles by author

More Essays

Jul 22nd 2021
EXTRACT: "You’d think our brush with mortality through the pandemic would have brought some of this home to us. You’d think it would give us pause for thought about what really matters to us: the kind of world we want for our children; the kind of society we want to live in. And for many people it has. In a survey carried out during lockdown in the UK, 85% of respondents found something in their changed conditions they felt worth keeping and fewer than 10% wanted a complete return to normal."
Jul 20th 2021
EXTRACT: "English artist Damien Hirst’s latest project, “The Currency”, is an artwork in two forms. Its physical form is 10,000 unique hand-painted A4 sheets covered in colourful dots. In the same way as paper money, each sheet includes a holographic image of Hirst, a signature, a microdot and – in place of a serial number – a small individual message. The second part of the artwork is that each of these hand-painted sheets has a corresponding NFT (non-fungible token). NFTs are digital certificates of ownership which exist on the secure online ledgers that are known as blockchains. ---- The way that “The Currency” works is that collectors will not be buying the physical artwork immediately. Instead, they will pay US$2,000 (£1,458) for the NFT and then have a year to decide whether they want the digital or the physical version. Once the collector selects one, the other will be destroyed. ---- So what is going on here, and what does it tell us about art and money?"
Jul 20th 2021
EXTRACT: "Ellison was an abstract expressionist painter, who, having come to New York City from West Texas in 1962, was as he said “unable to find traction” as a painter. At the same time, he began collecting ceramic objects and educating himself about this field of art as he went along. In 2009 he bestowed on the Metropolitan Museum of Art over 300 extraordinary examples of American ceramics, spanning the years 1876 through 1956. Since then, Ellison has gifted to the Museum over 600 works – including a significant collection of European art pottery in 2013, and most recently over 125 modern and contemporary clay vessels and objects – making the Museum one of the most significant repositories of Art Pottery in the world. ---- The current exhibition presents nearly 80 pieces drawn from Ellison’s latest donation, and it is a thoroughly captivating show; even where (or perhaps especially where) the works are outlandish, bizarre, sometimes almost monstrous, but nonetheless enthralling."
Jul 11th 2021
EXTRACT: "Over the course of England’s journey to the Euro 2020 final, one of the most fascinating plays has been happening just off the pitch. Whenever the TV camera cuts to the team’s manager Gareth Southgate, he is occasionally seen standing alone on the edge of the field, urging his team on. ---- But most of the time he is deep in conversation with his assistant Steve Holland. ---- A recent study of English football culture points to a shift away from what the authors term “Beckhamisation”, after the former England captain and Manchester United star player David Beckham – a popular and instantly recognisable symbol of that period of football history (though, it is not suggested the culture was his creation). ---- During the 1990s, the study claims, this “Beckhamisation” saw high octane management practices imported from the corporate world into football. ---- In recent years, this has been replaced by “Southgatism”, a leadership style which that study describes as “modest, self-deprecating, down to earth, diverse and progressive”. "
Jun 30th 2021
EXTRACT: "New York’s Museum of Modern Art is currently presenting an exhibition devoted to an in-depth review of Paul Cézanne’s drawings. If there is any criticism to be made of this extraordinary show, it is that it is frankly overwhelming: with roughly 280 pencil, ink and gouache drawings and watercolors (and even a handful of oil paintings), there is so much to take in that two or three visits to the exhibition may be required to do it justice."
Jun 25th 2021
EXTRACT: "Cognitive flexibility provides us with the ability to see that what we are doing is not leading to success and to make the appropriate changes to achieve it." .... "Flexible thinking is key to creativity – in other words, the ability to think of new ideas, make novel connections between ideas, and make new inventions." .... "The good news is that it seems you can train cognitive flexibility."
Jun 17th 2021
EXTRACT: "Confronting our complex history and ultimately embracing a more equitable, balanced, and humble culture may be a tall order in these fractious times. But that makes it even more imperative that we fully reckon with who we are and who we are capable of becoming."
Jun 11th 2021
EXTARCT: "A further health benefit of hiking is that it’s classed as “green exercise”. This refers to the added health benefit that doing physical activity in nature has on us. Research shows that not only can green exercise decrease blood pressure, it also benefits mental wellbeing by improving mood and reducing depression to a greater extent than exercising indoors can."
Jun 10th 2021
EXTRACT: "“The greatness of a nation and its moral progress,” Mahatma Gandhi said, “can be judged by the way its animals are treated.” If we apply that test to the world as a whole, how much moral progress have we made over the past two millennia? ...... That question is suggested by The Golden Ass, arguably the world’s earliest surviving novel, written around 170 CE, when Emperor Marcus Aurelius ruled the Roman Empire. Apuleius, the author, was an African philosopher and writer, born in what is now the Algerian city of M’Daourouch."
Jun 4th 2021
EXTRACT: "Research we’ve done, which looked at 37 adults with type 2 diabetes, found that over two weeks, prolonged sitting was associated with high blood sugar levels. But we also found that when people stood up or walked around between periods of sitting, they had lower blood sugar levels. Other studies have also had similar results."
May 28th 2021
EXTRACT: "Paul Van Doren's legacy lies in a famous company, and in his advice to young entrepreneurs to get their hands dirty, and to know what goes into making what they are selling."
May 19th 2021
EXTRACT: "May 7th marked three hundred and ten years since the philosopher David Hume was born. He is chiefly remembered as the most original and destructive of the early modern empiricists, following John Locke and George Berkeley." .... " Shocking as it may (and should) sound, Hume is implying nothing less than that the next time you turn the key in your car ignition, you are as justified to expect the engine will start as you are in believing it will turn into a pumpkin. For there is a radical contingency that pervades all our experience. We could wake up tomorrow to a world that looks and behaves very differently to the one we are in now. Matters of fact are dependent on experience and can never be known a priori — they are purely contingent, and could always turn out different than what we expect."
May 1st 2021
EXTRACT: " The sad reality is that the Mizrahim (Jews of Middle Eastern and North African descent) were discriminated against from the day of Israel’s inception, whose Ashkenazi (European Jewish) leaders viewed them as intellectually inferior, “backward,” and “too Arab,” and treated them as such, largely because the Ashkenazim agenda was to maintain their upper-class status while controlling the levers of power, which remain prevalent to this day." ..... " The greatest heartbreaking outcome is that for yet another generation of Israelis, growing up in these debilitating conditions has a direct effect on their cognitive development. A 2015 study published in Nature Neuroscience found that “family income is significantly correlated with children’s brain size…increases in income were associated with the greatest increases in brain surface area among the poorest children.” "
Apr 25th 2021
EXTRACT: "We all owe Farah Nabulsi an enormous debt of gratitude. In a short 24-minute film, The Present, she has exposed the oppressive indecency of the Israeli occupation while telling the deeply moving story of a Palestinian family. What is especially exciting is that after winning awards at a number of international film festivals​, Ms. Nabulsi has been nominated for an Academy Award for this remarkable work of art. " 
Apr 25th 2021
EXTRACT: "When I crashed to the floor of my home in Bordeaux recently after two months of Covid-19 dizziness, I was annoyed. The next day I collapsed again. Now I was worried. What I didn’t know was that my brain was sloshing around inside my skull, causing a mild concussion. Nor did I know that I was in for a whole new world of weird and wonderful hallucinations."
Apr 13th 2021
EXTRACT: "Overall, our review has found that there isn’t evidence to back up the claims that veganism is good for your heart. But that is partly because there are few studies ....... But veganism may have other health benefits. Vegans have been found to have a healthier weight and lower blood glucose levels than those who consume meat and dairy. They are also less likely to develop cancer, high blood pressure and diabetes. "
Apr 8th 2021
EXTRACT: "Pollock’s universe, the universe of Mural, cannot be said to be a rational universe. Nor is it simply devoid of all sense. It is not a purely imaginary world, although in it everything is in a constant state of flux. Mural invokes one of the oldest questions of philosophy, a question going back to the Pre-Socratic philosophers Parmenides and Heraclitus – namely, whether the nature of Reality constitutes unchanging permanence or constant movement and flux. For Pollock, the only thing that is truly unchanging is change itself. The only certainty is that all is uncertain."
Apr 8th 2021
EXTRACT: "Many present day politicians appear to have psychopathic and narcissistic traits too. It’s easy to spot such leaders, because they are always authoritarian, following hardline policies. They try to subvert democracy, to reduce the freedom of the press and clamp down on dissent. They are obsessed with national prestige, and often persecute minority groups. And they are always corrupt and lacking in moral principles."
Apr 6th 2021
EXTRACT: "This has led some to claim that not just half, but perhaps nearly all advertising money is wasted, at least online. There are similar results outside of commerce. One review of field experiments in political campaigning argued “the best estimate of the effects of campaign contact and advertising on Americans’ candidates choices in general elections is zero”. Zero!"
Mar 30th 2021
EXTRACT: "The Father is an extraordinary film, from Florian Zeller’s 2012 play entitled Le Père and directed by Zeller. I’m here to tell you why it is a ‘must see’." EDITOR'S NOTE: The official trailer is attached to the review.