by James Ostrowski, via The Freeman
Historian Forrest McDonald has produced this fine survey of how the idea of divided sovereignty has played out in American history. “Imperium in Imperio” means “sovereignty within sovereignty, the division of sovereignty within a single jurisdiction.” They said it could not be done — that sovereignty could not be divided. In 1789, however, the Americans tried it anyway and with mixed results. The people of the states created a regime that divided sovereignty—supreme authority—between the federal and state governments.
That being the case, it seems silly to ask, “Which came first, the states or the federal government?” Abraham Lincoln asked this question and answered, “the federal government”; and McDonald skewers him. Members of the Continental Congress “were there as agents of existing political societies, and in the nature of things, agents cannot authorize their principals to do anything.”
For a while, the original vision held true, and the size and power of the federal government was restrained. Yes, there was that pesky Federalist era, but when they took power in 1801, the radical Republicans did “strive to strip down the machinery that Hamilton and the Federalists had put in place, and to some extent they succeeded.” Taxes were axed. The Alien and Sedition Acts expired and pardons were issued. They reduced the army to a mere 3,350 men.
When war with England came in 1812, the United States was unprepared with its small army and small treasury. Although President Madison called up the militias of the states, New England refused to comply. McDonald believes this war showed the defects in the militia system. However, militias are designed to defend the homeland, not to attack foreign countries. Thus, foreign countries do not feel threatened by them.
Paradoxically, McDonald cites New England’s reaction to the War of 1812 as evidence of the weakness of the Jeffersonian system. That region sat on its hands during the war in a virtual state of secession, if not treason. The Yankees “conducted a lucrative trade with the enemy.” Lincoln’s hero, Daniel Webster, decried conscription proposals. Sounding like Jefferson, he asked, “Where is [conscription] written in the constitution?” The New England states met in convention to discuss secession. That talk fizzled, but the resolution they passed avowed that state governments may interpose themselves between their own citizens and arbitrary federal power.
Before the Civil War, the states’ rights faction was “triumphant.” Andrew Jackson “resisted efforts by Congress to extend the scope of the federal government and worked diligently to reduce the activities in which it was already engaged.” He cut the national debt and eliminated the Bank of the United States. By the time Jackson left office, the federal government had become “virtually nonfunctional.”
With sectional differences acute, old debates about the nature of the Republic were revived. William H. Seward countered the states’ rights view with his own: the union was of the whole people, not of the states. If true, this would make the right of secession implausible. Southerners did not agree. They were too busy reading Thomas Prentice Long’s analysis of the disparate impact of the federal tariff. He concluded that the North took about $250 million from the South as the result of the tariff and other federal fees. Whether the ultimate cause of the war was the tariff, slavery, or the preservation of the union, McDonald does not purport to resolve.
Without opposition from the South, Lincoln enacted Henry Clay’s American System: high tariff, internal improvements, and inflation. McDonald graciously describes Lincoln’s attitude on civil liberties this way: he went “beyond the bounds of the Constitution as it had been understood.” Lincoln’s people hijacked an election in Maryland. Over 13,000 political prisoners were taken, and newspapers were suppressed. He resorted to conscription to fight a war retroactively defined as against slavery. The citizens of the North and border states had to be forced to force the South to have a “new birth of freedom.”
Strangely, McDonald does not view the New Deal as an all-out assault on state prerogatives. The measures were mostly “economic” in nature and did not interfere with traditional state “police powers.” To justify this, however, we must follow McDonald’s use of the term “property relations” as not involving “economic” activity, which is a stretch.
He is on sounder ground in describing World War II as involving an “expansion of government [that] dwarfed any that had taken place before.” The postwar years were not good ones for the cause of states’ rights, associated as that concept was at the time with racial segregation by law. And under Lyndon Johnson, federalism completely collapsed. His “Great Society” destroyed the notion that there were certain areas of policy reserved to the states.
It is not always apparent where Professor McDonald stands on the battle between the Jeffersonians and Hamiltonians, between the proponents of states’ rights and the nationalists. That may be due to his evenhandedness as a scholar. Or maybe his view lies in the middle.
Originally published in The Freeman: April 2002 • Volume: 52 • Issue: 4