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The Precarious Balance of State Versus Federal Power in the Early Republic

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By Sarah J. Hyde l North Georgia College & State University

The “unresolvable issue of the founding era” that presented itself repeatedly “was federal versus state sovereignty. Any effort to enforce an unambiguous answer to that [issue] would probably have killed the infant American republic in the cradle. By avoiding that decision and allowing competing answers to coexist, the very purpose of government was subtly transformed from an ultimate arbiter to a framework for ongoing argument.”  And this argument was indeed ongoing. The vagueness of the Constitution’s definition of state and federal powers created discord between the two levels of government. This dissension manifested itself many times throughout the early republic, particularly with the Kentucky and Virginia Resolutions of 1798 and 1799, the Federalists’ Hartford Convention during the War of 1812, and the South Carolina Nullification Crisis of the early 1830s. As one historian noted, “America reenacts over and over the disagreement between Jeffersonians and Hamiltonians,” between the Federalists and Anti-Federalists.  While this statement oversimplified the various conflicts, it did illustrate that on the most basic level, these issues were more alike than they were different. Tensions continually arose, and each time the clash centered on what powers the different levels of government retained.

To understand these conflicts, one must understand the founders’ intentions. This is a difficult task, as their views shifted over time. In one instance, they may be on the side of the states, and on another occasion, the opposite could be true. This was particularly true of the “father of the Constitution,” James Madison. His original view of what the new government should look like was anything but consistent with his later views. Madison, during the drafting of the Constitution, argued for a much more powerful federal government than what resulted from the Constitution. He believed that “whatever document emerged from the [constitutional] convention should…be ratified by special state conventions instead of state legislatures in order to demonstrate that it was the will of the people rather than a compact among states” and that “the newly created federal government ought to possess veto power over all state laws ‘in all cases whatsoever.’”  Although Madison eventually compromised on his notion of federal veto power, he viewed this concession as one of the Constitution’s greatest faults. It was, however, essential in order to convince the states to ratify the Constitution. Without that concession, the ratification may never have occurred because of strong fears of centralization present within the states.

Despite the importance of Madison’s compromise in securing the ratification of the Constitution, this yielding of power allowed the states to maintain claims of sovereignty that endangered the Union. “For nearly a full century following independence in 1776 the central constitutional issue in America was the problem of the distribution of power between the states and the national government.”  The core of this problem rested in the varied histories of the different states. John Adams best expressed this when he affirmed that

the colonies had grown up under constitutions of government so different, there was so great a variety of religions, they were composed of so many different nations, their customs, manners, and habits had so little resemblance, and their intercourse had been so rare, and their knowledge of each other so imperfect, that to unite them in the same principles in theory and the same system of action, was certainly a very difficult enterprise.Other than the states joining forces for the Revolution, there was little connecting them to each other. The past embedded the peoples’ minds with the idea of a state level rather than a national level of government. Even under the rule of the British Crown, the colonies retained a great deal of sovereignty. The government created by the Constitution stifled state sovereignty, and many showed reluctance to accept a more centralized control. This “centrifugal heritage of the colonial period” was still evident during the antebellum years.  Lockean ideals of the Enlightenment period further influenced this distrust of a centripetal government, as many believed limiting government power was a necessity to shield the country from despotic rule.
These claims were apparent in Thomas Jefferson’s Kentucky Resolutions, which he penned in opposition to the Alien and Sedition Acts of the first Adams administration. In his resolution, he referred to the United States as a compact of states that held an equal right to that of the federal government in determining the constitutionality of laws. He argued that with “all compacts of this kind, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”  Whenever a violation of the Constitution occurred, it was the right of “the several states which formed the Constitution…to judge of its infraction; and a nullification by these sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy.”  Jefferson called for cooperation between the states, as opposed to what John C. Calhoun later claimed with the Ordinance of Nullification – the belief that an individual state could nullify an act.
James Madison tempered such claims further than Jefferson did by not referring to nullification anywhere in his Virginia Resolution; he instead called for interposition by the states, which was still drastically different from the federally prominent government Madison originally fought for in the debates on the Constitution. With interposition, “in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for [the states] maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”  Madison believed interposition by the states was necessary only in the direst of cases, and it was not a tool for gaining “authorities, rights and liberties” not previously granted to them in the Constitution. In the Virginia Resolution, Madison also shied away from defining how a state went about interposing if the federal government overstepped its bounds, contrasting with the later descriptive doctrine outlined with the nullification ordinance in South Carolina.
Jefferson additionally toned down the nullification rhetoric of his Kentucky Resolutions, as earlier drafts of this document showed a more radical perspective. The original draft claimed “that every State has a natural right, in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits.”  This draft came to light in 1832, and as a result it served as a prototype to Calhoun’s statements on nullification. With both the Kentucky and Virginia Resolutions, the early stages of the states’ rights rhetoric are apparent. Such rhetoric increased throughout the years of the early republic, and as various issues arose, those arguing for states’ rights continually used the Kentucky and Virginia Resolutions as a basis for their arguments. One Jefferson biographer argued that the Kentucky and Virginia Resolutions, originally
called forth by oppressive legislation of the national government… represented a vigorous defense of the principles of freedom and self-government under the United States Constitution. But since the defense involved an appeal to principles of state rights, the resolutions struck a line of argument potentially as dangerous to the Union as were the odious laws to the freedom with which it was identified. One hysteria tended to produce another. A crisis of freedom threatened to become a crisis of Union. The latter was deferred in 1798-1800, but it would return, and when it did the principles Jefferson had invoked against the Alien and Sedition Laws would sustain delusions of state sovereignty fully as violent as the Federalist delusions he had combated.
With the ensuing disputes, some states’ rights advocates often pushed further than either Jefferson or Madison had done, or intended anyone to do.
In a subsequent conflict, New Englanders confronted Jefferson’s Embargo Act with the same zeal that he confronted the Alien and Sedition Acts years earlier. The states that opposed the embargos used Jefferson’s words from his Kentucky Resolutions to declare the embargo laws null and void. Opposition to Madison’s Non-Importation Act during his presidency was just as ironic. At the time, the author of the Virginia Resolution was unknown to the public. When the New Englanders opposed Madison’s act, they quoted his resolution, stating that they “felt obliged ‘to interpose for the purpose of protecting them [the people] from the ruinous inflictions of usurped and unconstitutional power.’”  Henry Adams saw the irony of this droll situation, saying that “if Madison was not by that time weary of his own words…he might have found some amusement in the irony with which [Governor Jonathan] Trumball flung the familiar phrases of Virginia back into [his] face” without realizing they were Madison’s own words.
Those who opposed the administration of President Madison and the War of 1812 held a convention in Hartford, Connecticut in 1814-1815. This convention was a secret meeting of New England Federalists. At this convention, the state governments formulated a list of grievances against the federal government. These grievances were so significant that “direct and open resistance [was] the only recourse.”  The abuses that the legislators opposed included: the drafting of men for offensive wars, the immense taxes imposed on them, the disrupted balance of power from the admission of new states, the “unjust and unequal” three-fifths clause, the embargos, and the patronage they believed to be rampant in the federal government.  The problem did not rest solely with the current president though. As the report from the convention stated, “it is not conceivable that the obliquity of any administration could, in so short a period, have so nearly consummated the work of national ruin, unless favored by defects in the Constitution.”  If one followed this belief, then not only was Madison responsible for abuses during his presidency,  he also retained some of the blame for his work in creating the Constitution.
The Hartford Convention proposed nine amendments to the Constitution to remedy the errors they saw in the governing document. If the federal government did not address these issues, the Federalists implied that secession would be the result.  The oppositions of the New England Federalists were short-lived however, and their threats ultimately fell on deaf ears. The end of the War of 1812 brought to an end the Hartford Convention and the Federalists as a viable political force. Despite this abrupt end, this push for states’ rights still proved invaluable, as “it nationalized the doctrine of interposition.”  The proposals put forth at the Hartford Convention also reaffirmed the compact theory stated almost two decades earlier by Jefferson and Madison. This was particularly interesting because the convention used these ideas put forth by Madison to argue against his administration. This showed the inconsistency in Madison’s views of state and federal powers. Other than his lapse with the Virginia Resolution, however, Madison more often sided with the federal government in such conflicts. He would even later oppose the South Carolina nullifiers, many of whom used the Kentucky and Virginia Resolutions as a backing for their claims.
South Carolina’s Ordinance of Nullification maintained that the federal tariffs of 1828 and 1832 were null and void. The tariffs, in their opinion, demonstrated a proclivity to the North at the expense of the South. Because of that, these tariffs were “protective” of certain groups, which South Carolina claimed was unconstitutional because the Constitution “[provided] for equality in imposing the burdens of taxation upon the several States and portions of the confederacy.”  It was under this context that they nullified the tariff. While this was a major issue, the more pertinent concern was their claims of secession if the federal government tried to enforce the tariffs against the state. The ordinance asserted that the “States will thenceforth hold themselves absolved from all further obligation to maintain or preserve their political connection with the people of the other States, and will forthwith proceed to organize a separate government, and do all other acts and things which sovereign and independent States may of right do.”  These were dangerous claims for a state to make, so dangerous and treasonous to the Union that President Jackson was willing to use force to subdue them, as he expressed by asking Congress to pass the Force Bill.
If Congress passed this bill, it would grant Jackson sole authority to use force against those defying the collection of tariffs in South Carolina. The implication put forth by this congressional approval was that Jackson had the backing of the national government in the conflict, thus isolating South Carolina. With the ensuing debate on Capitol Hill pertaining to the passing of the Force Bill, disagreement arose between the differing factions in Congress. Senator Calhoun believed “that the people of the several States composing these United States are united as parties to a constitutional compact, to which the people of each State acceded as a separate sovereign community.”  In arguing this point, he quoted Jefferson’s Kentucky Resolutions by saying that the states have a right to judge “as well of the infraction as of the mode and measure of redress.”  Calhoun based his argument on the fact that the tariff laws were unconstitutional because of the unequal favoring of the North. Senator Felix Grundy refuted him, not by defending its fairness amongst the different sections of the country, but by listing out the various ways in which the Constitution granted the powers in question to the federal government and not to the states, specifically “that the power to lay imposts is by the Constitution wholly transferred from the State authorities to the general Government, without any reservation of power or right on the part of the State.”  Whatever rights the states had over duties on imports, they forfeited them when they ratified the Constitution.
Calhoun’s response to Grundy then brought up a crucial element henceforth linked to states’ rights. He believed that “the tendency to conflict in this action is between Southern and other sections…the weaker section [the South], with its peculiar labor [slavery], productions, and situation, has at stake all that can be dear to freemen.”  This statement had long-term repercussions, as he established his states’ rights argument along both physical and human geographical lines. This division was between the North and the South, the industrialized wage labor economies and the agricultural slave labor economies, between liberty and power. The states that Calhoun believed were “forever excluded from the honors and emoluments of this Government” are those in which the peculiar institution, slavery, thrived. Senator Daniel Webster argued that Calhoun’s claims and his nullification theory “[struck] a deadly blow at the vital principle of the whole Union.”  Calhoun fomented federal opposition with these impassioned statements. This potential death knell signified all of the prior issues coming to fruition, although Jackson was able to avert a full-blown crisis for the time. It nonetheless brought to light the discrepancies over what powers belonged to the state and federal governments, and the potential injurious nature of these disagreements if they were to present themselves again.
President Jackson saw the primary purpose of the Ordinance of Nullification as the destruction of the Union. He believed that “the Constitution of the United States…forms a government, not a league; and whether it be formed by compact between the States, or in any other manner, its character is the same. It is a Government in which all the people are represented, which operates directly on the people individually, not upon the States.”  Because it was the people’s government and not the states’ government, the individual states did not have a right to break from the nation. The claim of the factious nullifiers that they would secede if the federal government did not repeal the tariffs had many flaws. The government created by the Constitution was that of a federation, and not a league. Because of this, seceding “does not break a league, but destroys the unity of a nation.”  While the South Carolina nullifiers may have seen nullification itself as a way to prevent secession, the federal government did not see it in such a way. It was because of this that Jackson prepared to send troops to South Carolina should the situation worsen.
When the nullifiers used previous states’ rights crises as the basis for their Ordinance of Nullification, Jackson felt it necessary to distinguish between this crisis and earlier ones, as Jackson himself was a states’ rights advocate. In his proclamation against nullification, he listed out “the excise law in Pennsylvania, the embargo and non-intercourse law in the Eastern States, the carriage tax in Virginia,” all of which the states believed were unconstitutional.  None, he claimed, went so far as to declare what South Carolina was now stating in its nullification ordinance. The claims raised by South Carolina were immense. They went against the very existence of the Union. Jackson’s proclamation now aimed to shift the focus from the argument over compact theory to the argument that it was a government of the people, and not of the states. Jackson’s proclamation was a strong blow against the more extreme states’ rights advocates in South Carolina.
During the Nullification Crisis in South Carolina, Senator Robert Y. Hayne, who took part in the South Carolina Nullification Convention, also thought it important to compare the current states’ rights argument with that of the Hartford Convention, as Jackson had done in his proclamation. While Hayne did not disagree with a state’s right to redress its grievances, the conditions under which those in Hartford did so made them “wholly indefensible.”  In a debate in the Senate – which became part of one of the most significant debates in American congressional history – Hayne listed out the conditions the United States was under at the time of the Hartford Convention, saying that
its credit was nearly gone, Washington had fallen, the whole coast was blockaded, and an immense force, collected in the West Indies, was about to make a descent which it was supposed we had no means of resisting. In this awful state of our public affairs, when the Government seemed to be almost tottering on its base, when Great Britain, relieved from all her other enemies, had proclaimed her purpose of ‘reducing us to unconditional submission’ – we beheld the peace party in New England pursuing a course calculated to do more injury to their country and to render England more effective service than all her armies.
To Hayne, this was a blatant unpatriotic act. At such a critical time, the issues raised by the Hartford Convention should not have been their central focus. The actions of South Carolina, he believed, were not under the same unpatriotic circumstances, thus making their argument for nullification more valid. It was because of this that Hayne wished to express these distinctions between the Federalists in New England and the nullifiers in South Carolina.
The South Carolina nullifiers chose to cite the Kentucky and Virginia Resolutions, and not the Federalist’s argument with the Hartford Convention, because “the Federalist party had been thoroughly discredited by its opposition to the War of 1812 while the Jeffersonian heritage, however ambiguous, was a necessary mantle with which any political cause had to be covered in the 1820s if it was to have any chance of success.”  Although Jefferson passed away prior to the nullification conflict in South Carolina, Madison had not, and thus he took it upon himself to defend “the Jeffersonian heritage” that the nullifiers insulted through their reliance on the Kentucky and Virginia Resolutions. He believed that for South Carolina “to establish a positive and permanent rule giving such a power to such a minority over such a majority, would overturn the first principle of free Government and in practice necessarily overturn the Government itself.”
Despite backing their argument with the words of the Kentucky and Virginia Resolutions and not those of the Federalists in New England, there were similarities between the nullifiers in South Carolina and the earlier Federalists during the War of 1812; both saw secession as the end result if the national government did not address their grievances.  The difference between the two was that the Federalists implied secession, and the South Carolina nullifiers explicitly called for it. The nullifiers took the Federalists’ argument to a completely new level, pushing it so far that many states’ rights advocates chose to dissociate themselves from the politicians involved in the Nullification Crisis. One instance in particular in which this is evident was with Kentucky, which had a strong states’ rights background. In opposition to the nullifiers, the General Assembly of Kentucky stated that it
cannot admit the right of a minority, either of the state or the people to set up their opinion not only in opposition, but to overrule that of the majority…the consequences of such a principle, if practically enforced, would be alarming in the extreme. Scarcely any important measure of the general government is ever adopted, to which one of more of the States are not opposed. If one State [has] a right to obstruct and defeat the execution of a law of Congress because it deems it unconstitutional, then every State has a similar right. When the dissatisfied State opposes to the Act of Congress its measures of obstruction, the alternative is presented, shall the act be enforced within the particular State, or be abandoned by Congress? If enforced there is a civil war; if abandoned, without being repealed, a virtual dissolution of the Union. As the successful exercise of the power of resisting an Act of Congress by one State, would naturally stimulate other States, disapproving other acts of that body, to similar resistance, the practical result would be, that Congress could adopt and enforce no measure whatever, to which any one of the twenty-four States might be opposed.
In the debate in the Senate between Hayne and Senator Daniel Webster regarding South Carolina, they argued for and against the right of a state to nullify an act of the federal government. The salient Webster had gained a reputation as “the greatest orator of his age.”  This debate, in which he uttered the famous words: “Liberty and Union now and forever, one and inseparable,” affirmed that title.  Hayne argued for the cause of South Carolina, while Webster was in opposition to the actions taken by the state. Hayne believed that the South Carolina Ordinance of Nullification was “the good old Republican doctrine of ’98; the doctrine of the celebrated ‘Virginia Resolutions’ of that year, and of ‘Madison’s Report’ of ’99…The opinions of Mr. Jefferson on this subject have been so repeatedly and so solemnly expressed that they may be said to have been the most fixed and settled convictions of the mind.”  Hayne saw the election of Jefferson to the presidency as affirmation from the people that this doctrine was in fact the accepted belief. In South Carolina’s doctrine, they had not, in his opinion, gone any further than had Jefferson and Madison in 1798 and 1799.
When Webster refuted Hayne’s argument, the central issue he addressed was who held the power to determine constitutionality, the states or the federal government.  He believed that Hayne’s interpretation of this power, that each state could individually decide, was absurd. This irrational idea stemmed from what he believed to be a misunderstanding of the origin of the Constitution. Webster claimed that it was “the people’s Constitution, the people’s Government; made for the people; made by the people; and answerable to the people.”  This particular statement defined the vast differences of opinion that would plague the country up until the Civil War. Lincoln would later even use an adapted form of Webster’s statement in his Gettysburg Address when he uttered the words, “of the people, by the people, for the people.”
This idea of a people’s government rather than a state’s government gained particular momentum during the time of the Nullification Crisis. Lincoln perhaps summed up best the argument against Hayne and Calhoun’s compact theory of government. Although he was stating this in relation to state secession during the Civil War, Lincoln argued that
our states have neither more nor less power than that reserved to them in the Union by the Constitution – no one of them ever having been a state out of the Union. The original ones passed into the Union even before they cast off their British colonial dependence; and the new ones each came into the Union directly from a condition of dependence, excepting Texas. And even Texas, in its temporary independence, was never designated a state.
From the time that these colonies became states, they gave up some sovereignty. For a state to claim that it was a member of a mere compact that could be broken at will went against the basis of what the states were. The people of the colonies created official states as part of the Union, as they did not exist as such outside of the Union. Because of this, it was not a government of the states, but a government of the people with the states subordinate to the national government and to the people.
Throughout the various conflicts of state versus federal supremacy, the central issue was always that of the struggle between liberty and power. This struggle defined the American republic, from its founding up until the present. Some of the most important examples of this struggle were during the early years when the Constitution was still in its infancy. With these conflicts, people often equated liberty with greater state sovereignty, and power as a negative aspect of the central government. This longstanding clash between the two defined the principles of the Kentucky and Virginia Resolutions, the Hartford Convention, and the Nullification Crisis. Such argument of state sovereignty, however, were inconsistent with the Constitution. When the states ratified the Constitution, they gave up “the right to set the norms of citizenship, to make election rules, to coin money, to collect duties, to enter into treaties, to raise a navy, to form partial alliances, [and] to deal with Indian nations.”  Moreover, “if you went to the citizens of a sovereign nation and said that they were going to be deprived of any one of these powers, they would rightly complain that they had lost independent authority as a nation.”  Herein lies the problem with many of the states’ rights arguments; in exchange for the benefits of a national government, they willingly gave up all of the qualifiers of sovereignty when they joined into the perpetual union created by the Constitution.
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