In part one of this series I wrote about the effect slavery had on the Civil War and compared our current issue of illegal immigration and some of the effect it is having on society today. We also looked at the division of the country and how the issue of slavery and states’ rights caused the first Civil War. Now, let’s define states’ rights and their origin and how it applies today.
The first 10 amendments to the U.S. Constitution collectively are what is known as the Bill of Rights. These amendments were adopted as a single unit two years after ratification of the Constitution. There were many disagreements among the early leaders of this nation after the original drafting of the Constitution. Many were dissatisfied with the limited guarantees of freedom listed in the Constitution. That led the founding fathers to further expand and highlight personal rights as well as define boundaries and limitations on the federal government in these first 10 amendments.
For over 200 years the interpretation of the Constitution has been debated. One of the first major debates was between cabinet members under George Washington’s Presidency. Andrew Hamilton, Secretary of Treasury, and Thomas Jefferson, Secretary of State, disagreed on the clause giving Congress all powers “necessary and proper” for carrying the specified powers into effect. Hamilton used his interpretation to establish a national bank and his desired financial program. However, in the Tenth Amendment, Jefferson discovered a bar to congressional legislation of that kind: no power to establish a bank having been delegated to Congress, that power must have been reserved to the states. President Washington sided with Hamilton and signed the bills that Congress passed to enact Hamilton’s plan. Eventually Jefferson withdrew from the Washington administration.
Jefferson and James Madison organized opposition to it and thus created two political parties with differing views on the subject, The Federalist Party and the Republican Party. The Federalist Party was willing to exploit the “implied powers” of the Constitution, while the Republican Party demanded a “strict construction” of the document. This continues today in the Democratic Party’s continued philosophy of the expansion of the federal government and the Republican Party’s philosophy of less federal government and more state’s rights to govern themselves. That is still the core battleground of political debate in Washington today on most issues and legislation.
The Republicans, still convinced that much of the Federalist legislation was unconstitutional, were further outraged when, in 1798, Congress passed the Alien and Sedition Acts, which provided for the fining and imprisoning of those who uttered anything “false, scandalous, and malicious” against the government, the Congress, or the president. The Republicans felt that was a flagrant violation of the First Amendment, which stated that Congress “should pass no law abridging freedom of speech or of the press.”
There was also disagreement concerning what agency should have the power to decide the question of constitutionality? The Constitution vaguely gives the Supreme Court the power to decide, and the Republicans denied that the Court could rightfully assume that power. They argued that the state legislatures should decide and ably expounded their views in two sets of resolutions, one written (anonymously) by Jefferson and adopted by the Kentucky legislature (1798–1799) and the other drafted by Madison and approved by the Virginia legislature (1798). These resolutions asserted the following propositions: The Federal government had been formed by a contract among the states. It was a limited government, possessing only specific delegated powers. Whenever it attempted to exercise any additional, undelegated powers, its acts were “unauthoritative, void, and of no force.” The parties to the contract, the states, must decide for themselves when and whether the central government exceeded its powers. The state legislatures must serve as “sentinels” to watch out for unconstitutional acts. And “nullification” by the states was the “rightful remedy” whenever the general government went too far. The resolutions urged all the states to join in declaring the Alien and Sedition Acts null and void and in demanding their repeal at the next session of Congress, but none of the other states went along with Virginia and Kentucky.
State rights and strict construction were usually the arguments of the party out of power (and have been throughout American history). As long as the Republicans were outsiders, they remained strict constructionists, but once Jefferson became President, they used the full powers of the Federal government to further the agrarian interests they represented. Indeed, they used much more than the rightful and constitutional powers, according to the Federalists, who now adopted the state rights point of view. So, political debate over the power of government is as old as government itself. When you have two opposing schools of thought with legitimate points of view you can have effective and productive government as long as the balance of power and checks and balances are in place. Anytime one party gains too much control and power we lose that balance. That is happening today with strong opposition from the majority of Americans right now that believe the federal government is over-reaching its power.
The first threat of state secession from the union came during the presidencies of Jefferson and Madison. The Federalist Party disagreed with the Louisiana Purchase and the War of 1812. The leader of that opposition, Daniel Webster, tried unsuccessfully to get New England to secede. Jefferson, after his retirement from the presidency, joined in opposing the Federalist-minded judges as “sappers and miners” who were undermining the Constitution. Now doesn’t that sound familiar? That is a major part of the argument today between “conservatives” and “liberals.”
Former vice-president John Calhoun was another early leader in the philosophical battles over governmental control. While a Congressman from South Carolina he favored the War of 1812 and advocated protective tariffs, internal improvements at Federal expense, and a national bank. Calhoun was the early architect of a system for state resistance to unconstitutional laws. He refined and elaborated the doctrine of sentinelship that Jefferson and Madison had begun. His theory focused on the assumption that the people (not the government) in each state were sovereign and, in their sovereign capacity, had ratified and thus given validity to both the state constitution and the U.S. Constitution. They had done so, he argued, through their delegates in specially elected conventions. In this ratification process he discovered the procedure for dealing with questions of constitutionality. A state convention–not the state legislature as in Madison’s and Jefferson’s proposal– could nullify a Federal law. That law would remain null and void within the state until three-fourths of all the states had ratified a constitutional amendment specifically giving Congress the power in question. If they should ever do so, the nullifying state would still have a recourse–secession. Just as a state could “accede” to the Union by ratifying the Constitution, it could “secede” by repealing its ordinance of ratification.
In 1832, South Carolina put nullification to the test when a state convention declared all protective tariffs, particularly those of 1828 and 1832, to be null and void within the state. Calhoun having resigned the vice presidency, presented the case for the nullifiers before the Senate, Daniel Webster, now a senator from Massachusetts, debated the opposing view. Webster contended, “The truth is, and no ingenuity of argument, no subtlety of distinction, can evade it, that, as to certain purposes, the people of the United States are one people.” According to the new Webster, a state might secede from the Union, but only on the basis of the right of revolution, not on the basis of any constitutional right. While remaining in the Union, however, a state could not nullify congressional acts, for nullification was no right at all, he maintained.
President Andrew Jackson, agreeing with Webster, denounced nullification as treason and asked Congress for authority to use the army and the navy to enforce the laws. Though the nullificationists had sympathizers in other Southern states, not one of those states officially endorsed the South Carolina stand. Calhoun claimed a victory for nullification when Congress passed and Jackson signed a compromise bill for gradually lowering the tariff.
Calhoun came to realize that a single state, unaided, was powerless to interpose against Federal authority. So he set about cultivating a spirit of unity among all the slave states. According to Calhoun, slavery occupied a special place in the Constitution, and in his theory of state rights. He insisted that it was the only kind of property that the Constitution specifically recognized (though, in fact, the document did not mention slavery by name; instead referring to “free Persons” and “all other Persons” and to a “Person held to Service or Labor”). Therefore, nullification could be used to defend or strengthen slavery but not to attack or weaken it. We will pick up here in part 3 of this series next week.