States' Rights

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STATES' RIGHTS

The concept of states' rights presupposes a federal relationship among states. In the case of the United States, the constitutional principle of states' rights can be traced to the federal Union's creation by the states for limited purposes. As embodied in the Tenth Amendment to the Constitution, states' rights became one of the founding principles of the Jeffersonian Republican Party that dominated federal politics in the first quarter of the nineteenth century.

Throughout the imperial crisis of the 1760s and 1770s, the chief points on which the colonists insisted were the "rights of Englishmen" and the prerogatives of their colonial legislatures. The Sugar Act (1764), the Declaratory Act (1766), the dissolution of the New York assembly (1767), the Tea Act (1773), the Massachusetts Government Act (1774), the Boston Port Act (1774), the Administration of Justice Act (1774), and various other of the parliamentary initiatives to which the colonists objected so stoutly should be understood as having offended them primarily as they impinged upon the colonists' right of self-government. At first, this inherited right was said to extend to an exclusive right in the provincial assemblies to tax the colonists; Patrick Henry's Stamp Act Resolves of 1765 based this right on a cogent account of Virginia's colonial history, and the Stamp Act Congress of 1765, drawn from nine colonies, asserted this exclusive right in Pennsylvanian John Dickinson's resolutions.

In 1766 Parliament repealed the Stamp Act. Simultaneously, it adopted the Declaratory Act, in which it claimed authority to legislate for the colonists "in all cases whatsoever." Americans would remember that claim.

By the time the fighting started in 1775, radical colonists such as Thomas Jefferson were going further than Dickinson's resolutions. For Jefferson, in his pamphlet entitled A Summary View of the Rights of British America (1774), Parliament had no right to legislate for the colonists at all; the only legitimate constitutional tie between the colonies and the mother country was that they shared a common crown. When the Second Continental Congress declared in 1776 that the thirteen colonies were and of right ought to be free and independent states, it based its claim on a Lockean account of government that culminated in an assertion that King George III had effectively abdicated his role in regard to the thirteen colonies. Among George's supposed misdeeds was his failure to prevent the British Parliament from legislating for North America.

Besides coordinating American foreign and defense policy, the First and Second Continental Congresses had, by default, to establish the working federal relationship among the states. Each time Congress claimed authority, it met with opposition from those states that could expect to carry the most of the burden or, in some cases, to be negatively affected. Nowhere was this clearer than when it came to the states' western land claims.

Several states claimed extensive lands beyond the Proclamation Line of 1763. From its earliest days, Congress endeavored to provide rational national policies for the governance of those lands, but the states with western claims, particularly Virginia, rose to the defense of their parochial interests. In defending their claim to exclusive jurisdiction over their trans-Ohio River territories, Virginia members of Congress such as George Mason, James Madison, and James Monroe developed a sophisticated theory of states' rights and reserved powers that would later be resuscitated and reinvigorated by the Virginiacentered Jeffersonian Republican Party.

In 1777 Congress submitted the proposed Articles of Confederation to the states. After four years of debate, the Articles—America's first federal constitution—were ratified. Leading figures from all sections of the country recognized the inadequacy of the Articles, particularly when it came to the federal government's taxing power, but tiny Rhode Island stood in the way of their favorite proposal: an amendment to the Articles granting Congress power to levy a tariff.

a new constitution

In response, self-styled Federalists plotted to hold a continental convention to reinvigorate the federal government. Led by Alexander Hamilton and James Madison, and with the support of General George Washington, they finally succeeded in convening a group of delegates from twelve states at Philadelphia in May 1787.

The Federalists' purported goal was to formulate acceptable proposals for amending the Articles of Confederation to give the government adequate powers. In fact, however, their true goal was to substitute a new government for the old one. Seeing through Federalist pretensions, several notable American politicians, including New York's George Clinton, North Carolina's Willie Jones, and Virginia's Patrick Henry, refused to participate; Rhode Island rejected the invitation to send delegates altogether.

Why? Henry, James Monroe, and other Virginians believed that a stronger congress would be willing and able to sacrifice Virginia's rights for the majority's benefit. Henry's concern had been raised by Congress's 1786 attempt to trade American rights to navigate the Mississippi River for limited access to Spanish colonial ports in the Caribbean Sea. Both in the Philadelphia Convention and in the subsequent state ratification conventions, proponents of leaving the preponderant legislative authority in the states opposed the nationalist program of the Federalists. They did so largely out of concern for the primacy of the states in the federal system. At Philadelphia, that insistence resulted in the state legislatures' power to elect U.S. senators and in the defeat of James Madison's proposal that Congress have a veto over all state laws; in the ratification conventions, it shaped the debate in myriad ways.

Most important, concerns for state sovereignty elicited from Virginia governor Edmund Randolph, a Philadelphia Convention delegate and the leading Federalist orator in the Richmond ratification convention of 1788, repeated avowals that the new federal government would have only the powers it was "expressly delegated" by the Constitution. Fellow Federalist delegate George Nicholas, a lieutenant of Madison's, picked up on this formulation, and the two of them forcefully repeated that claim at the convention's end. Nicholas and Randolph were two of the five delegates chosen to draft Virginia's instrument of ratification, which reserved certain rights to the people. It was on this understanding that Virginia ratified, and Federalists in other states—notably South Carolina—made similar assurances.

Federalists had already proven untrustworthy: they had promised that the Philadelphia Convention would merely propose amendments to the Articles. Therefore, several ratification conventions proposed amendments akin to what became the Tenth Amendment, which says that any powers not delegated through the Constitution to the federal government are reserved to the states respectively or to the people. To remind federal officials of their intention to hold them to Randolph's pledge, the majority of the Virginia General Assembly in 1790 adopted a resolution written by Patrick Henry to the effect that Hamilton's bill for assumption of the state debts was unconstitutional because in adopting it, Congress exercised a power not "expressly" granted to Congress.

the early 1790s

The First Congress saw a heated discussion of the idea of taxing slave imports. Members of Congress from the Deep South insisted that the Constitution's denial to Congress of a power to prohibit slave imports before 1808 implicitly denied it the power to tax slave imports. Ultimately, South Carolina representative Aedanus Burke said that if a special tax were placed on slave imports, South Carolina would secede from the Union. Georgia delegates echoed this threat, and the proposal failed.

Through the 1790s, self-styled Republicans would repeatedly insist that the federal government, in exercising powers not "expressly" granted it by the Constitution, were violating the Tenth Amendment; that is, they would say that virtually every controversial measure of the federal government amounted to an impingement upon states' rights.

For example, James Madison's opposition in the House of Representatives to the 1791 bill granting a federal charter to a bank rested ultimately on the idea that the power to grant such charters had been reserved to the states. Secretary of State Thomas Jefferson, at the request of President Washington, made a virtually identical argument in the cabinet. Federalists consistently rejected this argument, as Washington ultimately did in signing the bank bill. So far as they were concerned, the federal government was a sovereign in the international system. Since it alone represented the American people abroad, it could tax and spend for all the purposes of government.

Republicans remained steadfast in their insistence that various federal measures violated the reservation of residual powers to the states throughout the 1790s. Thus, the Virginia politician John Taylor of Caroline insisted that the federal excise tax on carriages was unconstitutional because the power to levy it had not been expressly granted and because of its disproportionate sectional incidence (only two carriages were taxed in all of Connecticut, he asserted, but virtually every substantial planter in Tidewater Virginia had one); for rhetorical effect, Taylor added that if the federal government could overstep the bounds of its authority to tax a particular type of property held mainly in the South in this instance, that would be a dangerous precedent for taxing another type of property that was held mainly in the South. From the beginning, then, the Republican insistence on states' rights was tied to slavery, not only by U.S. senators and representatives from the Deep South but by leading Republicans in Jefferson's home state.

One result of this Republican campaign was the Eleventh Amendment, affixed to the federal charter in 1795. This amendment grew out of the unpopularity of the U.S. Supreme Court's decision in Chisholmv. Georgia (1793). The majority of the Court said in the decision that Georgia could be made a party defendant to a suit in federal court even without that state's consent. Legislatures from Massachusetts to Virginia protested, and the result was an amendment denying the federal courts authority to make a state a party to a suit against its will. Popular opinion seems to have been behind the amendment.

the alien and sedition acts

The climax of the Federalist-Republican debate of the 1790s came at the decade's end. In response to the Alien and Sedition Acts of 1798, the Republicandominated legislatures in Virginia and Kentucky promulgated the Virginia and Kentucky Resolutions of 1798. The federal government, according to these Republican resolutions, had been created by the states, had only the powers granted it by the states, and must, in the last resort, be kept by the states from depriving Americans of their rights. Virginia's version, secretly penned by Madison, said that the remedy to unconstitutional and dangerous federal legislation was state "interposition"; the first draft of Kentucky's, secretly written by Jefferson, called the proper remedy "nullification."

Alexander Hamilton believed that "Virginia" (meaning the Republican Party) meant to dismember the Union. Some leading Republicans, such as Taylor and the U.S. representative from Virginia, William Branch Giles, were contemplating precisely that in 1798. The Virginia General Assembly, meanwhile, took steps to invigorate Virginia's militia. Vice President Jefferson wrote to Taylor in June 1798 that the time for secession had not arrived yet. In the days before the election of 1800, he believed that what he called the "reign of witches" would be dispelled by the arrival of the tax bill associated with the Federalists' military buildup.

In the interim between 1798 and the election of 1800, things did not look very promising for the Republicans. Federalists achieved their largest congressional majority in the elections of 1798, and ten states responded to the Virginia and Kentucky Resolutions with staunch, in some cases resounding, disapproval. Several of them rejected the idea that it was a state's right to interpret the federal Constitution, saying that this authority lay in the federal courts. In 1799, Kentucky adopted a second set of Jeffersonpenned resolutions, this time saying it would be among the very last to secede because it loved the federal Union for the purposes for which it had been created. In Virginia, Madison left retirement to sponsor his Report of 1800 as a member of the House of Delegates. Along with asserting the unconstitutionality of virtually every controversial Federalist measure of the 1790s, the Report of 1800 also clarified what the Republicans meant when they said the states had created the federal government: a "state," in this context, was the sovereign people of a particular state. The government of a state was not sovereign, the people were.

republican presidencies

Once Jefferson assumed the presidency in 1801, he changed his tune. The Revolution of 1800, as he came to call it, had proven not that Americans hated taxes, but that they approved of the Virginia and Kentucky Resolutions of 1798. States' rights would be the Jeffersonian gospel ever after.

Jeffersonians gleefully pushed their platform of limited federal government and low taxes through Congress in 1801. That platform circumscribed their options in foreign policy markedly, leading to the military fiasco that was the War of 1812. Hit harder than the rest of the country by the war's economic repercussions, Federalist governors of some New England states exercised their states' right to refuse to send militiamen to fight beyond their states' boundaries. In 1814, as the war went badly, New England Federalists staged a regional convention to consider their options. Although some of the instigators of the Hartford Convention of 1814 favored New England independence, most did not. Still, Republicans succeeded in branding the conventioneers as disloyal, and the coincidence of the war's end with the convention's end spelled doom for the Federalist Party as a national force.

Still, by the war's end in 1815, even President Madison found himself constrained to concede that the Principles of '98 had seemed far more practical in theory than they had proven in practice. In 1816, he asked Congress to charter the second Bank of the United States. State-level Republicans in several states disapproved, and they enacted legislation intended to impede operation of bank branches within their bounds. One state, Maryland, imprisoned the chief operating officer of its bank branch, and he appealed the case to the Supreme Court.

McCulloch v. Maryland (1819) was the result. In his opinion for a unanimous Supreme Court, Chief Justice John Marshall wrote a Hamiltonian reading of the Constitution into constitutional law, where it remains enshrined. Rejecting the argument that Jefferson and Madison had made against the constitutionality of the first bank in 1791 and that had been repeated by framer Luther Martin before the Court, Marshall held that the Constitution granted Congress very broad authority to legislate for the common good. Maryland, the Court ruled, had no right to interfere with the bank's operations.

President Madison left office in 1817 with a ringing states' rights veto message as his last official act. Leaders in Congress intended for the federal government's share of bank profits to be used in construction of various public works. Madison responded that he found no mention in the Constitution of a congressional power to fund construction of roads, bridges, canals, and other internal improvements, so the advocates of these improvements must first secure a constitutional amendment. Observers noted that Madison's position in his Bonus Bill Veto Message of 1817 clashed with his signature on the 1816 bill chartering the bank.

Virginia's dominant Republicans had other opportunities to joust with John Marshall's Supreme Court, including Martin v. Hunter's Lessee (1816). In that complicated litigation, the Supreme Court issued a writ ordering Virginia's highest court to send a certified copy of the record in the case so the Supreme Court could consider an appeal. Spencer Roane, a states' rights–minded Jeffersonian on the Virginia Court of Appeals, took the bait: he wrote that the Supreme Court had no authority to order the Virginia Court of Appeals to do anything. Virginia's court system and the federal court system were coordinate systems, he said, and each must conduct its business without the interference—much less oversight—of the other. In his opinion for the Supreme Court, which still stands as the keystone of American judicial federalism, Justice Joseph Story said that all matters of federal law ultimately could be appealed to the Supreme Court. Both Martin and McCulloch provoked furious responses from leading Jeffersonians in speeches, in books, and in newspapers (and, in Jefferson's case, in private correspondence), but these had no notable effect on the Marshall Court. Jefferson lamented that the Court seemed to be undoing the Republicans' repeated victories at the polls. Roane, for his part, never certified the record in Martin for Supreme Court review.

The Missouri crisis. In 1819 citizens in the Missouri Territory submitted their draft constitution to Congress with an application for statehood. A Republican representative from New York, James Tallmadge, touched off the Missouri crisis by responding that while Missouri should be admitted to the Union as a state, it must do so with a constitution banning slavery from its territory. In the main, northerners—whose states had either eliminated or virtually eliminated slavery—agreed, while southerners held that slavery must be allowed in Missouri if its citizens wanted it. Jefferson, in retirement, said that the issue was states' rights, specifically the right of the state of Missouri to make for itself a decision—whether to allow slavery within its territory—that every other state had made for itself. (Jefferson was wrong about that, as he should have realized, for the Northwest Ordinance had decided the issue without giving any say to citizens in the states carved out of the Northwest Territory.) The Missouri Compromise respected Jefferson's principle in regard to Missouri, but rejected the idea of allowing citizens of future states carved out of the Louisiana Territory north of Missouri's southern border to decide that issue for themselves. President James Monroe, with the concurrence of War Secretary John C. Calhoun, accepted the Missouri Compromise as a suitable solution to a very difficult problem, despite its arguably anti-southern and anti–states' rights elements.

Divided Republicans. By the time Monroe left office in 1825, the blurring of the Republican Party's old principles had become so marked that John Quincy Adams, his generation's leader of what a Republican member of Congress once dubbed "the American House of Stuart," succeeded him as Republican president. In his Inaugural and his First Annual Address, Adams called for an expansive federal spending program. He also tried to send a diplomatic delegation to a conference that would feature representatives from the Republic of Haiti, recently established by history's only successful slave rebellion. Opposition to President Adams swelled among those who remained devoted to the old Jeffersonian nostrums of states' rights and strict construction. Soon enough, the Republican opposition to this Republican president would give birth to a new party, the Jacksonian Democratic Party, with the same constitutional emphases. While states' rights might sometimes be ignored by those who trumpeted them most loudly, the idea that the states came first and that the federal government had limited power retained great influence upon the American imagination at the end of the early Republic.

bibliography

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Kevin Gutzman

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