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CHAPTER X

THE STATE RIGHTS FETISH

I

The doctrine of state rights is one that is intimately associated with American history, especially with certain movements and controversies that fell in the period before the Civil War. Writers and teachers of American history are accustomed to use the phrase as if it furnished a fundamental explanation of the motivation of events. That this is far from true any detailed examination of American history should make apparent; and indeed the expression itself has borne different meanings at different epochs or as understood by different leaders in the same epoch. At one period of our history the foremost exponents of the state rights theory were believers in nullification. At another time the doctrine was epitomized in the claim of the right of secession. In either of these forms the doctrine might more properly be called "state sovereignty." Yet again, those who promulgated state rights views had nothing more in contemplation than a peaceful political purpose to induce the federal government to allow freer play for the authority of the state governments.

These contrasting schools of state rights opinion did not essentially differ with each other as to fundamental purpose but, as we shall see, they held different views as to a practical program of achieving results. The kernel of all forms of the state rights doctrine was the desire of the state governments to enhance their power or, at least, to resist encroach

ments of the federal authority. Since the respective spheres of power of state and nation are defined in the federal Constitution, advocates of state rights, however they may have differed among themselves, all joined in professing a belief in a "strict construction" of that instrument. They held that the powers granted to the federal government in the Constitution should be understood in the most literal sense and, in the language of the tenth amendment, that the powers "not delegated to the United States by the Constitution, nor prohibited by it to the States," were "reserved to the States respectively, or to the people."

The origin of the great controversy is to be found in the Federal Constitutional Convention. In a less direct sense, the state rights question is not to be regarded as an American problem at all, but rather as the inevitable fruit of any attempt to reconcile centralized federative control with local self-government. In this sense, the Revolutionary War may be regarded as a victory for state rights, or colonial self-government, carried to the point of secession; and the Articles of Confederation were a codification of that victory in the guise of a formal constitution under which the separate states became freer of their own central government than they as colonies had desired to be of the British home government. The chief task that confronted the leaders of the Federal Constitutional Convention was, in its essence, the same that the British government had failed to solve a dozen years before: the problem of harmonizing central unified control with state sovereignty.

The solution was worked out in the Constitutional Convention by men of practical vision who were resolved to

1 It is interesting to note that the state-rights strict constructionists were always one-sided in the application of their doctrine, and were never willing to apply strict construction as a criterion when defining the rights reserved to the states. From this point of view those who are known in history as the broad constructionists, the men who desired to preserve or enlarge the powers of the federal government, may be regarded as strict constructionists in respect to state authority.

make the national government a going concern at whatever cost to preconceived theories of state sovereignty. The constitution they produced magnificently justified their method; but from the standpoint of pure theory the document necessarily contained compromises, concealments and inconsistencies which were eagerly seized upon by later disputants to justify their peculiar views of the nature of the federal system that had been created. Leaders of both the nationalist and state rights schools could find aid and comfort in the wording of the Constitution; but neither group could make out an impregnable case for its manner of thinking without ignoring or explaining away phrases and implications which supported the contrary position.

Readers of the older American histories are likely to get the impression that the state rights theory, like cotton and slavery, was a peculiar product of the South, and that in the political field it has dominated the beliefs and policies of the Democratic party. On the basis of these assumptions the history of the United States prior to the Civil War, and to some extent since, is pictured as a great struggle between two schools of governmental theory, the Democrats, and the South generally, being wedded by temperament and intellect to the one view, and the rival party supported by a majority of the northerners having a psychological affinity for the other. There is, of course, a measure of truth in all this; but the picture as a whole is in wrong perspective and blurs the essential facts.

It is the purpose of the present discussion to show, as Alexander Johnston has so well said, that "almost every state in the Union in turn declared its own 'sovereignty,' and denounced as almost treasonable similar declarations in other cases by other states," and, secondly, that political parties have been almost as variable in this respect as the states. Throughout the discussion it will appear that eco

nomic interest or some other local advantage has usually determined the attitude of states and parties toward questions of constitutional construction.

II

The first notable attempt by any state legislatures to formulate the state rights doctrine appeared in the wellknown Virginia and Kentucky resolutions of 1798 and 1799. We know now that these resolutions had a political animus behind them. Drafted respectively by Madison and Jefferson, they were adopted by the legislatures of Virginia and Kentucky as a spectacular protest against the action of the Federalists in Congress in passing the Alien and Sedition Acts and other laws which seemed to contravene a plain reading of the Constitution. Far from being carefully reasoned documents, these resolutions resorted to extravagant language in much the same manner as modern political platforms and for exactly the same purpose: the arousing of popular indignation against the party in power.

By both states the Union was pronounced a compact formed by sovereign states which retained the right to decide when the federal government was acting beyond its constitutional powers. The Virginia resolutions asserted, somewhat vaguely, that when, as in the present case, the federal government was guilty of exceeding its authority, the states had the right "to interpose for arresting the progress of the evil"; and the Kentucky legislature, while bravely resolving that nullification was "the rightful remedy," ended up rather lamely by declaring that against the acts objected to "this Commonwealth does now enter . . . its solemn protest." In view of the next turning in the history of the state rights theory, it is interesting to note that the New England legislatures, controlled by Federalist opinion, were a unit in decrying the dangerous tendency of the Virginia and Ken

tucky resolutions and in asserting that the power of passing upon the constitutionality of acts of Congress was vested by the Constitution exclusively in the federal courts.

The second important development of the state rights doctrine grew out of very different circumstances. In December, 1807, the Republican party in Congress under the leadership of President Jefferson passed the embargo as an act of retaliation against British and French interferences with American trade during the Napoleonic wars. New England was the center of the shipbuilding industry and the chief carrier of world commerce at this time, and the people there bitterly resented a regulation which meant the total destruction of their chief source of wealth. They therefore embarked upon a career of obstruction and opposition to the federal government, that was to last far into the war that the United States waged with Great Britain from 1812 to 1815.

Forced to resort to minority tactics, the New England leaders found their most effective weapon in the adoption of the state rights doctrine which Jefferson and Madison had sponsored a few years earlier. In February, 1809, the Massachusetts legislature resolved that the embargo measures were, "in many respects, unjust, oppressive and unconstitutional, and not legally binding on the citizens of this state," though the citizens were counselled "to abstain from forcible resistance, and to apply for their remedy in a peaceable manner to the laws of the commonwealth." The Connecticut legislature resolved in a similar spirit that it would not "assist or concur in giving effect to the . . . unconstitutional act, passed to enforce the Embargo."

With the outbreak of the war with Great Britain, the New England leaders found new grounds for disaffection. One cause for complaint was the insistence of the United States government that the state militia should be called into

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