THEORIES OF THE UNION

Political unions are organizations of states possessing specific powers for carrying out purposes of mutual interest to constituent polities. Unions are formed by means of confederation or federation, and by definition are combinative or compound in nature rather than unitary or homogeneous. In American history the Union refers to the general structure of political authority created during the Revolution by the American people, acting through their colonial and state governments, for the pursuit of common purposes as an expression of their incipient nationality. Theories of the Union are explanations of the American state system, descriptive and normative in purpose, which have been formulated to guide political action and resolve controversies among the member states. Especially important in the period from 1789 to 1868, theories of the Union have been concerned with four principal issues: the origin and nature of statehood; the nature and extent of state powers; the origin, nature, and extent of the powers of the central government; and the manner of resolving conflicts between the states and the central authority.

Although intercolonial cooperation occurred intermittently before the Revolution, in an effective political sense the formation by the colonies in 1774 of an assembly to deal with imperial matters of common concern marked the beginning of the American Union. In 1776 this assembly, the continental congress, issued the declaration of independence, proclaiming that the colonies "are, and of right ought to be, free and independent states." Yet the Declaration also referred to the people in the colonies as "one people," and to the colonies as "the United States of America." The practical effect was to announce the existence of a national Union comprising thirteen state governments and a central body, Congress, which, although not constituted as a government and incapable of legislating for individuals in the states, was more than merely the agent of the states. Although theory and principle to explain this new compound political organization were yet to be formulated, the fact of a division of sovereignty characterized the American Union from the outset.

The Union thus existed as political reality before it was rationalized in a formal instrument of government, the articles of confederation (1781). Asserting that "[e]ach State retains its sovereignty, freedom and independence, and every Power, jurisdiction, and right which is not by this confederation expressly delegated to the United States," the Articles conformed to the model of a league of autonomous states. However, the language of state sovereignty notwithstanding, the states were not perfect states. And Congress, although empowered only to make resolutions and recommendations rather than to make law, in matters submitted to its consideration acted as a real government. In practical effect the Union resembled the operation of the British empire, in which sovereignty had been divided between the colonial governments managing local affairs and the authority of Parliament regulating matters of general interest in the empire.

Theory of the Union was relevant to territorial problems of the 1780s, which raised the question of the origin and nature of statehood. The original colonies based their claim to statehood on their colonial charters and the fact of succession to previously existing political establishments. This theory of the creation of states implied a fixed or determinate Union, and was useless to those people—either in existing states or outside them—who desired to form new states and join the Union. An alternative approach was to claim a revolutionary right of self-government; Vermont may be said to have employed this principle in its struggle to separate from New York and achieve statehood. A third method of state making was to form a political community and secure recognition from the other states. This technique was developed in the 1780s when Virginia and other states with extensive land claims, desiring to confirm their sovereignty, ceded some of their lands to Congress and secured in return approval of their claims and state boundaries. Implicit in these transactions was an expansive rather than static conception of the Union: although states might proclaim their sovereignty, the determination of statehood—the very existence of the states—depended on the sanction of the other states acting through Congress.

The constitutional convention of 1787 altered the nature and structure of the Union by creating a central government, capable of making law and regulating individuals, in place of the noncoercive authority of the Confederation. Precisely how much and in what ways the restructured Union differed from the Confederation was debated during the process of ratification of the constitution. These debates gave rise to the classic theories of the Union expounded by statesmen of the early national period.

In providing for a government based on the separation of powers and comprising a legislature elected in part by the people, the Framers of the Constitution applied republican principles to the problem of organizing the American Union. They did not, however, completely reject the essential principle of the Confederation, the idea that the states were the constituent power. This principle was retained in the provisions for equal state representation in the Senate and for the contingency plan for electing the President in the House of Representatives, where each state was to have had one vote. The result, as james madison wrote in the federalist #39, was a government partly national and partly federal in respect of the source, operation, and extent of its powers; the constituent basis on which it was established; and the nature of the amending authority. Some of these functions embodied the idea that the American people as a single national community were the constituent power; others, the idea that the states as separate political communities were constituting the central government.

In contemporary usage the term "federal" referred to a confederation of sovereign states, and the word "national" to a unitary government operating directly on individuals. Accordingly, the Articles of Confederation were described as a federal government. But the supporters of the new government, combining elements of both a confederation and a unitary national government, called it a federal government. In doing so they gave a new definition to federalism as the division of sovereignty among a central government and separate state governments operating on the same population in the same area.

In the ratification controversy Federalists and Anti-Federalists combined arguments from history, the constitutional text, and political theory to fashion competing theories of the Union in pursuit of their divergent political goals. Denying that sovereignty could be divided, Anti-Federalists warned that the proposed central government would transform the Union into a consolidated state. The Federalists, in order to allay states ' rights apprehensions, stressed the division of authority between the states and the central government and the ultimate sovereignty of the people. Although the Federalists glossed over conflicts that were bound to arise in a governmental system based on a division of sovereign authority, their constitutional theory confirmed the main tendencies in the operation of the American Union from its inception.

Perhaps the single most important formulation of Unionist theory was contained in the virginia and kentucky resolutions of 1798–1799, written by james madison and thomas jefferson. Seeking a constitutionally legitimate way to prevent the enforcement of the alien and sedition acts, the Republican party leaders advanced the compact theory of the Union. On this theory were based all subsequent assertions of states' rights and state sovereignty, including those supporting secession in 1861.

Jefferson and Madison argued that the Union was a compact made by the states, which as the constituent parties retained the right to judge whether the central government had violated the compact. Exercising this right by the accepted practices for implementing compacts, the states, according to Madison, could "interpose" their authority to stop unconstitutional acts of the central government. In the Kentucky Resolutions of 1799 Jefferson declared that a nullification by the sovereign states of all unauthorized acts of the federal government was "the rightful remedy." The theory thus propounded held that the states created the Union; the federal government could exercise only delegated powers, not including regulation of speech and press, which were reserved to the states; and the states had authority to question the exercise of central authority and by implication to settle constitutional disputes over federal-state relations.

Whether Madison and Jefferson contemplated peaceful concerted action by the states, or single-state defiance of federal authority (possibly by force, as was later proposed in South Carolina), their action served as precedent and model for one of the basic strategies of constitutional politics throughout the antebellum period. From the standpoint of constitutional law the most significant feature of the compact theory was the proposition that the states had created the Constitution and the Union. The argument could mean any number of things depending on how a state was defined. A state could be considered to be the territory occupied by a political community, the governing institutions and officers of the community, or the people forming the community. In his report to the Virginia legislature in 1800, Madison used the third of these definitions to explain how the states, through the ratification process, had made the Constitution. On this theory, the tenth amendment expressed the equivalence of state and people, reserving powers not delegated to the federal government "to the States respectively or to the people." A fixed feature of later states' rights and state sovereignty teaching, this popular conception of statehood enabled compact theorists to define the nation as self-governing political communities founded on common republican principles.

An alternative theory of the Union was propounded by the Federalist party. Federalists held that the Constitution and the Union had been made by the people of the United States, who as the constituent power had divided sovereignty between the states and the central government. The government of the United States possessed limited powers, but within its sphere of action it was supreme. Federalists, and their Whig political descendants in the 1830s, further reasoned that according to the original constitutional design conflicts in federal-state relations were to be resolved by the federal judiciary. In his debate with Robert Y. Hayne of South Carolina in 1830 on the nature of the Union, daniel webster said the judicial article and the supremacy clause were the "key-stone of the arch" of Union. "With these," he declared, "it is a constitution; without them, it is a confederacy."

Distrusting localism, Federalists identified the nation with the central government, and theirs is often referred to as the nationalist theory of the Union. This reference is misleading, however, insofar as it implies that the compact theory was not a valid expression of American nationality. Properly regarded, the Federalist-Whig doctrine is the central supremacy theory of the Union. Acknowledging divided sovereignty and the limited nature of federal authority, Federalists and Whigs recognized states' rights as essential to the Union. But, believing the nation could act only through the central government, they insisted on the supremacy of federal power when it conflicted with an otherwise legitimate state power. The supremacy clause of the Constitution was the positive expression of the principle of federal paramountcy that its proponents believed was intended to guide national development.

In refuting the compact theory, central supremacy theorists made the popular origins of the Union their most distinctive tenet. They insisted that the Constitution was not a compact made by the states but an instrument of government made by "the people of the United States." The meaning of this term is not self-evident. It might be taken to mean that the American people constituted and could act as a single political community. Webster seemed to have this conception in mind when in the debate with Hayne he argued that the Constitution "pronounces that it is established by the people of the United States in the aggregate," not by the states or even by the people of the several states. john marshall stated the popular-origins thesis more carefully in mcculloch v. maryland (1819). Marshall observed that the Constitution was "submitted to the people" for ratification, and they acted on it "by assembling in Convention." In a sense Marshall conceded the compact theorists' main point—that the Constitution had been ratified by the people acting as separate political communities. "It is true," he wrote, "they assembled in their several States." But he discounted the significance of this fact, adding: "and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act they act in their States." Thus the same facts on which the compact theorists based their conclusion that the Union was made by the states supported the central supremacy contention that the Union was made by the people of the United States.

From 1830 to 1860 theories of the Union continued to have political significance as Americans expanded territorially and struggled with the slavery question. Two variations of the compact theory were developed to protect slavery within the state system: dual federalism and the nullification theory of john c. calhoun of South Carolina. Within the central supremacy theory, meanwhile, the idea of the Union as perpetual and indissoluble was elaborated.

Although formally accepting divided sovereignty, dual federalists in a practical sense sought to remove actual or potential central government restraints on state power, including the power to protect slavery. Insisting that the reserved powers of the states constituted a limitation on the federal government, they regarded the Tenth Amendment as a kind of supremacy clause for the states. Accordingly, in cases such as new york v. miln (1837) the Supreme Court under Chief Justice roger b. taney, reversing the effect of Marshall's central supremacy unionism, held that state powers over matters of "police" had not been surrendered to federal authority.

Calhoun's doctrine of nullification, employed in South Carolina's fight against the tariff in 1832, was a more radical extension of the compact theory of the Union. Calhoun held that federal powers were granted in trust by the states, which he defined as the people exercising indivisible sovereignty in separate political communities. He thus rejected the principle of divided sovereignty. Picking up where Madison and Jefferson had left off, Calhoun sought to devise a constitutional means of obstructing unconstitutional acts of the central government. His ingenious, if ultimately perverse, solution was to transform the creative constituent power of the states, identified in the Article V amending power, into an instrument of negation. Calhoun reasoned that a state, acting in popular convention, might interpose its authority to nullify a federal measure. The states would then be consulted, and if three-fourths of them did not approve the objectionable measure it would be withdrawn. If, however, the states upheld the central government, the nullifying state could secede from the Union.

Placed on the defensive by the nullificationists, central supremacy advocates were moved to insist on the perpetuity of the Union. This idea was implicit in the very creation of the Constitution. The fact that the Articles of Confederation referred to the Union as "perpetual" did not prevent men from believing that a state might withdraw its membership; by the same token the omission from the Constitution of the language of perpetuity did not mean that the Framers considered the Union to be anything less than a permanent government. It is nevertheless significant that while the terms disunion and secession were employed in the early nineteenth century, not until the nullification crisis did central supremacy theorists like Webster and john quincy adams explicate the perpetuity idea. Their argument may be described as declaratory in nature. But it was not only Whig keepers of the central supremacy tradition but also Democrats who met the South Carolina challenge by asserting perpetual Unionism. In his Proclamation to South Carolina (1832) President andrew jackson condemned secession as unconstitutional and affirmed the Constitution as a binding obligation on the states.

Changing little as constitutional doctrine, the central supremacy theory of the Union formed part of a nationalist ideology that emerged in the North in the pre-Civil War period. In contrast to the universalistic, democratic, and decentralized nationalism associated with the compact school, northern nationalism, based on New England Federalist sources and developed by Whig and Republican politicians, was historical, ethnic, cultural, and religious in nature. Whereas President george washington in his Farewell Address had said it was the "unity of government which constitutes you one people," central supremacy theorists such as francis lieber turned the equation around by regarding the American people as forming a sovereign national community, from which emanated the Constitution and the Union. In this sectionally sponsored nationalism, the Union, without ceasing to be a means of securing liberty, became as well an end in itself: an organically rooted thing of absolute and intrinsic value.

Theories of the Union had a configurative as well as causative effect on the Civil War and Reconstruction. The existence of the compact theory—and the reiteration of this theory from 1798 to 1860 as the basis for states' rights, nullification, and disunionist demands—provided an arguably constitutional course of action for Southerners to follow in seceding from the Union in response to the antislavery threat. In the North the tradition of central supremacy constitutionalism was available to rationalize and sustain the Republican party's decision to resist secession. Pronouncing secession "the essence of anarchy," President abraham lincoln in 1861 affirmed the perpetuity of the Union, declared its primacy over the states, and asserted that "the States have their status in the Union, and they have no other legal status." The war would be fought, Congress resolved in 1861, "to defend and maintain the supremacy of the Constitution and to preserve the Union, with all the dignity, equality, and rights of the several States unimpaired."

Applying central supremacy tenets, the United States government between 1861 and 1868 regarded the Union as unbroken in a constitutional sense. It denied any legal effect to secession, treated the rebellious states as disorganized communities, and adopted measures to form loyal state governments capable of resuming their place in the Union. Acknowledging at most that the seceded states were out of their proper practical relation with the Union, federal authorities were forced to consider the fundamental question in Unionist theory: the origin, nature, and meaning of statehood.

Was a state to be defined as territory, population, governmental institutions and officers, or political community? Federal reconstruction policy held that a state was a body of people constituting a political community whose existence was dependent on and qualified by the Union. Implicit in the history of the state system, this relationship was explicitly rationalized in Article IV, section 4, of the Constitution, which states: "The United States shall guarantee to every State in this Union a Republican Form of Government." In choosing the guarantee clause as a reconstruction basis, Congress rejected the idea that a state was mere territory, or population, or governmental institutions and officers whose acts of disloyalty could destroy the state and cause it to revert to a territorial condition, subject to the plenary power of Congress. The progression to statehood out of the territorial condition, if not a constitutional right enjoyed by the people as a political community, was at least irreversible.

Although compact theorists had long feared the transformation of the Union into a consolidated government, when political conditions in the 1860s were most favorable for this development, reconstruction policymakers evinced a concern for states' rights and divided sovereignty as essential to Unionism. The Supreme Court expressed this outlook in texas v. white (1869), confirming the congressional view of statehood as an irreversible condition. The Court declared that a "State, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries." Without the states in the Union, the Court reasoned, there could be no such political body as the United States. The conclusion therefore followed that "the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."

The triumph of the central government in the Civil War signified the rejection of the compact theory of the Union as a framework for national development. Although aspects of the theory continued to be used in political and constitutional debate, it was repudiated in relation to the practical question that made it a vital element in antebellum politics: the mounting of single or concerted state resistance to central authority, including the possibility of secession. After the war secession was no longer a constitutionally conceivable or politically practical course of action. The central supremacy theory prevailed as the framework for constitutional development.

Although it is doubtful whether the American people, to use John Marshall's formulation, could in a constitutional sense be described as having been compounded into a single common mass as a result of the war, nevertheless in a political and ideological sense the idea of the people as a single national community, rather than as similar yet separate political communities, gained wider acceptance. Moreover, within the central supremacy theory the adoption of the thirteenth, fourteenth, and fifteenth amendments greatly altered federal-state relations. The nature and extent of federal and state powers of course continued to be a major issue in constitutional law and politics. But the nature of statehood, the nature of the Union, and the propriety of federal resolution of conflicts in the operation of the state system were now settled issues. Theories of the Union, associated with fundamentally different conceptions of nationalism, ceased to be relevant to basic political choices as Americans entered the period of industrialization.

Herman Belz
(1986)

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