Cooper’s Shadow: Secession, Nullification and State Rights, Circa 2013
Friday, September 27, 2013
University of Arkansas School of Law, Fayetteville, Arkansas
Free and approved for four hours of general CLE
Note: the Symposium will be livestreamed in Room 505 at the William H. Bowen School of Law at the University of Arkansas at Little Rock.
On September 29, 1958, in a case raising “questions of the highest importance to the maintenance of our federal system of government,” the Supreme Court declared in no uncertain terms that “[n]o state legislature or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”
Cooper v. Aaron (1958) was arguably an easy case for the Court, one in which it embraced the rule of law in response to a vision of state rights within which racial insubordination was the dominant motif. As such, Cooper was part of a constitutional dialogue about federal-state relations that began in the 1790s with Jefferson’s suggestion in his Kentucky Resolution that “a nullification” was the only proper response to the Alien and Sedition Acts. It wove its way through secession and Civil War, events “testing,” as Lincoln, observed, “whether th[is] nation or any nation so conceived and so dedicated can long endure.” And, in its narrow form, it culminated in judicial and Congressional repudiation of the “separate but equal” mantra articulated in Plessy v. Ferguson (1896) and the belief, expressed in 1956 in the now-repealed Amendment 44 to the Arkansas Constitution, that states could “interpose” their sovereignty in the face of “dangerous invasions of or encroachments upon” their “rights and powers” by the federal government.
State rights rhetoric has now assumed a new identity, predicated on the assumption that the “[s]tates, upon ratification of the Constitution, did not consent to become mere appendages of the Federal Government” and that all parties to the political and legal dialogue must recognize and account for “the sovereign dignity of the states.” Federal Maritime Comm’n v. South Carolina State Ports Authority (2002). New variants on old themes provide the bases for concerted political and legal attacks on a wide range of federal initiatives, predicated a vision of the Constitution as a compact and nullification as the “peaceful path to liberty.” Indeed, some suggest that secession is now a legitimate and appropriate response to a modern federal administrative state they believe has become an untamable behemoth.
This Symposium will examine current claims that state rights are supreme, nullification a state prerogative, and secession an option worth considering in response to constitutional “wrong turns.”
It will begin with a keynote address by Sanford V. Levinson: “The 21st Century Rediscovery of Nullification and Secession in American Political Rhetoric: Frivolousness Incarnate or Serious Arguments to Be Wrestled With?”
Two panels will follow. The first, moderated by Nate Coulter, will offer a local perspective on these issues provided by three individuals on the front lines in these debates: Morril Harriman, Chief of Staff to Arkansas Governor Mike Beebe; Bob Ballinger, a lawyer who represents the 97th District in the Arkansas House of Representatives; and Max Brantley, Senior Editor of the Arkansas Times.
The second, moderated by Mark Killenbeck, will include four eminent scholars: the Pulitzer Prize winning historian Jack Rakove from Stanford University: philosopher Kit Wellman from Washington University in St. Louis; law professor and political scientist Mark Brandon from Vanderbilt University; and political scientist James Read from the College of St. Benedict.
The Symposium will then conclude with a response by Professor Levinson and general discussion.
The Symposium will be free and has been approved for four hours of general continuing legal education credit.
To register for the CLE, please send an email to firstname.lastname@example.org.
Since the weekend of the symposium is also a University of Arkansas Razorbacks home football game, please make hotel reservations as early as possible.