States’ Rights and the Union: Imperium in Imperio, 1776–1876

Forrest McDonald, the Distinguished Research Professor of History at the University of Alabama, writes that “the most pervasive” problem besetting American politics in its first century after Independence was disagreement about “the nature of the Union and the line to be drawn between the authority of the general government and that of the several states.” His compelling narrative ends with the Civil War and Reconstruction, with an epilogue sketching the story up to the recent rediscovery by the U.S. Supreme Court that a principle of federalism limits national power.

Many policy debates in America today, ranging from taxes to education to health care, ultimately concern federalism and the principles it aims to preserve, liberty and equality. A generation ago Herbert Storing, by restoring the Antifederalists’ role in America’s founding debates, reminded us that American politics is defined both by principles and by debates about principles. Our complex constitutionalism ever concerns how best to balance, in given circumstances, our commitment to principles that don’t always fit together easily”liberty and equality, nation and state, progress and tradition, faith and skepticism. McDonald’s book reminds us that as long as our politics is healthy we will be discussing how to balance the power of states and the national government.

Federalism guarantees that politics will be messy and complicated. It even includes the possibility that whole and parts become empires in a zero“sum struggle, as with the debates over slavery. Still, our Civil War was not an inevitable consequence of the complex politics of federalism, any more than chattel slavery itself was inevitable. Indeed, federalism, the voluntary union of political societies to form a new state with limited powers while member states retain other powers, provides a middle path between the despotism of empires and the chaos of ethnic or religious separatism.

McDonald begins by noting that a “division of sovereignty with a single jurisdiction” was “generally regarded as impossible, until Americans devised a way of doing it.” By the 1780s several future Federalists, unhappy with disorder under the states“oriented Articles of Confederation, began to think that sovereignty could be shared. Their principle, which McDonald finds “both subtle and simple,” was this: “Government at various levels had certain responsibilities, and inherent in those responsibilities was the power to carry them into execution.” Some properly resided in national authority, some in separate states and their localities, and some remained with the people. Still, even from the time the Articles were proposed two distinct voices broke into debate. McDonald describes these as “nationalists” and “states’ rights republicans,” precursors to the Federalists and Antifederalists, who debated a constitution with a genuine national government to balance the states.

McDonald notes how difficult it was for Washington to keep armies in the field, let alone defeat the British, given a Congress that had little real power and no unitary executive. After the adoption of the Constitution, Washington’s Administration and the early Congress were divided between Hamiltonians and Jeffersonians. The Federalists were practically extinguished by the victories of Jefferson’s Democratic“Republican party in the 1800 election, leaving the federal judiciary under the new Chief Justice John Marshall as the only national authority not dominated by the states’ rights principle.

The defenders both of states’ rights and of national authority shifted from region to region and party to party depending upon the issue and upon which group was dominant, which the loyal opposition. Jefferson preached about weak federal government and strict construction of its constitutional power, and had given birth to the doctrines of secession, interposition, and nullification in the 1798 Virginia and Kentucky resolutions, yet he conducted his presidency and led his party with a boldness that surpassed anything Hamilton or Washington ever proposed, let alone attempted. Madison joined with Jefferson on the 1798 resolutions, despite having been an architect of the Constitution and its stronger national government. As McDonald tells the story of the nineteenth century, the aims of life, liberty, property, and the pursuit of happiness caused Americans to oscillate between a natural“born distrust of government as threatening these ends, and a recognition that rights could only be enjoyed if government provided certain kinds of order and activity. Thus Madison later found that a dose of experience”the British burning parts of the nation’s capital in the War of 1812”indicated that a more robust national defense and economic plan, including a national bank, were needed.

McDonald tracks the main issues and moves through the era of Jacksonian democracy and the apparent triumph of states’ rights, to the rise of slavery as an issue given the expansionism of Manifest Destiny. He weaves the names, phrases, and issues one first learns in school into a coherent narrative about federalism, from the triumvirate of Clay, Calhoun, and Webster, to the contrasting Marshall and Taney Supreme Courts, to the slide toward secession and inter­ necine violence after the Compromise of 1850. He concludes that the “doctrine of states’ rights had been stretched to and, as the Civil War would demonstrate, beyond its limits.” The Union would survive secession after the bloodiest war yet in human history, but so, too, would the doctrine of states’ rights, though both would be significantly altered. Throughout McDonald notes how important Supreme Court rulings were for the American debate about federalism. McDonald’s main contention is that the “original understanding” of the Constitution was as a “compact,” one “not among sovereign states,” nor “of the whole people among themselves,” but “among peoples of different political societies, in their capacities as peoples of the several states.” This, however, is ambiguously phrased, and McDonald’s narrative spells out his notion of compact in debatable ways.

First, McDonald is too bold when claiming that there was “no theory of divided sovereignty” for the American founders to consult. By the 1770s Montesquieu rivaled Locke’s influence in America, and in the 1780s and 1790s he and his disciple Blackstone surpassed Locke altogether. Indeed, Federalist No. 47 cites Montesquieu as “the oracle” on separation of powers and No. 9 quotes at length his theory of federalism. There Hamilton notes that Montesquieu considers the Hellenic republic of Lycia the best example of federalism, in part because its central council had significant authority. A second, related quibble concerns McDonald’s view that the theory and language of the Declaration are shaped largely, or even simply, by Locke. For every passage traceable to the Second Treatise there are several more traceable to the English common law tradition and Blackstone’s analysis of the English revolution of 1689, not to mention the numerous phrases borrowed from Protestant Christian confessions. A people influenced by a blend of Enlightenment theory, common law jurisprudence, Protestant creeds, and such complex thinkers as Montesquieu and Blackstone was prone to eventually choose a complicated manner of self“government”indeed, not just separation of powers or federalism, but both.

McDonald’s views on the theory of federalism and the Declaration fit with the main point of his narrative, that the Constitution is a “compact” among the peoples of the states. He opposes this “original understanding” to two extremes”the view of Jefferson, the later Madison, and the Confederacy that the Union was a league among states, and the view of Marshall, Webster, Lincoln, and even of Andrew Jackson that the Constitution was formed by the people of America, albeit through the instrument of state“based conventions. The difficulty is that McDonald cites two incompatible authorities for his middle view, Madison in Federalist No. 39 and John C. Calhoun. As he admits, Calhoun’s “compact” theory essentially deepens the states’ rights argument of 1798, implying that the Constitution itself harbored doctrines of interposition, nullification, and secession. If this were so, little would have changed from the Articles, for the real power still would lie in the states. McDonald elsewhere recognizes, however, that the genius of the Union involves “strong balancing mechanisms” such that neither nation nor states had total supremacy, but that each had supremacy as to different powers and spheres.

His view of a compact among peoples is more correct when grounded in the early Madison, but Federalist No. 39, seeking to parry criticisms about consolidation, fudges the issue. Madison states that the formation of the Union was not national but federal in nature, for it required ratification of the people by state. His characterization of executive power and of the amending process as partly national and partly federal is more accurate, and in fact applies to the formation of the Union. Madison indicates this himself in No. 43 when addressing the illegality, strictly speaking, of superseding the Articles not by unanimous consent of the states but by popular conventions, and in only nine of thirteen states. He declares that the “express authority of the people””not peoples”“alone could give due validity to the Constitution.” The Articles are a mere “compact,” a term he never uses regarding the new, more perfect Union, and he cites the Declaration as justifying “society” in bypassing legal details to establish it.

McDonald’s strictly Lockean view of the founding supports his adoption of Calhoun’s “compact” view, a focus on contract theory and origins that overlooks the American concern for both larger ends and constitutionalism. To secure those ends the American people forged a new instrument, a Constitution, and bound themselves by it. They looked to the more complex constitutionalism of Montesquieu, Blackstone, and the common law tradition precisely so as to leave behind the disorder and weakness yielded by contractarian thought. The “We the People of the United States” who did so had already become one people, as Lincoln argued, in the Declaration and the war.

The debate about federalism has been so raucous at times because those who lost the ratification debate over the Constitution did so only by a hair’s breadth, then soon became the dominant voice in our politics. Still, now more than ever we need to restore the balance between our Lockean individualism and our devotion to constitutional complexity and larger purposes. This is not to take the view of New Dealers. Indeed, for the past century most American political scientists, following Wood­ row Wilson, have disdained the principles of our constitutionalism”separation of powers and federalism”as undemocratic, backward looking, and inefficient. We have learned, however, that Wilson’s blend of populism and scientific administration yields bureaucrats, demagogues, pollsters, overreaching judges, and journalists who can practice versions of elitism and tyranny quite well.

Forrest McDonald’s book restores to us the great debates about a great American principle, federalism, and whether or not one agrees on every point, one is pushed to think seriously and return to the original sources. As McDonald notes, the vitality produced by both federalism and the debate over it meant that, a century after independence, the United States “managed both to remain unburdened by oppressive central authority and to take long strides toward greatness.” Whatever success we have had stems in part from appreciating the need for both national and local authority, and from harnessing our constitutional complexity to achieve both individual aims and a common good.

Paul Carrese, currently a postdoctoral fellow in Government at Harvard University, is Associate Professor of Political Science at the U.S. Air Force Academy.