Mises Daily Articles
The Nature of the Union
A Review of Forrest McDonald, States Rights and the Union: Imperium in Imperio, 1776-1876 (Lawrence: University of Kansas Press, 2000)
It is not at all surprising to have another outstanding book from the pen of Forrest McDonald, a distinguished historian of the Early Republic presently teaching at the University of Alabama. Nor is the interpretive line taken in his new book entirely surprising. His position has been emerging, gradually, from his earlier works on the founding period, e.g., E Pluribus Unum (Indianapolis: Liberty Fund, 1979), pp. 309-317.
I read over those pages a few weeks ago, I was given to hope that McDonald would pursue that line further. Now he has done so in a fashion that will certainly stir up the nationalist animals. Having previously viewed American history from the standpoint of the presidency, McDonald now looks at it from that of states rights.
IMPERIUM IN IMPERIO
McDonald has produced a short general history of American life and politics from 1776 to 1876, with an emphasis on the concept and reality of "divided power," or imperium in imperio the 18th-century phrase. Contesting the right of Parliament to govern them in all things, colonial writers had to argue that each colony enjoyed a separate arrangement with the King of England. McDonald seconds these colonial spokesmen: "they had thirteen real compacts in the form of charters that gave them existence as political societies" (p. 9). Thus the "nationalist interpretation" of the American Revolution and Founding "is untenable" (p. 10). Some of us have never doubted it, but it is nice to have someone of McDonald’s stature join us in this heresy.
THE THIRTEEN SOVEREIGN PEOPLES
Heresy is compounded when McDonald, with keen-eyed clarity, concludes that the states were sovereign during the revolution and that, absent any recorded dissolution of themselves as separate politically organized peoples, they remained so under the Articles of Confederation and even under the Constitution of 1787.
By ratifying the new charter, they delegated certain powers and functions upwards to a stronger general government without at all giving up their ultimate sovereignty and political existence. Such "a compact among peoples of different political societies... was undreamed of in political philosophy" (p. 9, my emphasis).
PARTISAN POLITICS CLOUDS THE SETTLEMENT OF 1788
The unprecedented character of the new system gave surface plausibility to various misreadings of American constitutional theory. In addition, there was a natural tendency for those in power to gloss over such matters and for those out of power to raise the standard of states rights against policies of which they disapproved. I will not summarize McDonald’s entertaining and able treatment of the Federalist Era, the election of 1800, Republicans in power, the so-called "Era of Good Feelings," and so on. This is all standard stuff but McDonald sheds new light on it by weaving in the struggle for and against states rights--divided power--as his central theme.
The Supreme Court put itself forward very early as final interpreter of the Constitution’s meaning. McDonald notes that before the War of 1861-1865 there was no real consensus that the Court’s opinions were so terribly binding. This area was "contested," as the postmodernists like to say, and there is no shortage of cases in which state legislatures and state courts simply ignored the Delphic Oracles of Washington, when they genuinely believed the Court to be wrong. This will seem very shocking to those raised to believe that serial bouts of creative writing by the High Court actually constitute the Constitution. But a few inconsistencies in constitutional interpretation and enforcement did not themselves undermine the union or the public happiness.
Evidently, that old devil politics did begin to undermine the union. The Federalist party espoused an American mercantilism resting on monetized debt, a standing army, and "loose construction" of the Constitution. They overreached themselves with the Alien and Sedition Acts and in the election of 1800 their Democratic Republican opponents overthrew them. Meanwhile, the Kentucky and Virginia Resolutions had stated what in time would come to be seen as a peculiarly Southern view of states rights.
McDonald’s partiality to Hamilton’s economic program and similar programs offered by the Whigs - with which one might wish to quarrel - does not detract from his plumb-line treatment of states rights. He does, however, savor the ironies whereby Jefferson and Madison, having preached states rights and limited government out-of-power, adopted most of the Federalist program once they were in office. Indeed, Jefferson’s embargo involved some of the most liberticide searches and seizures ever seen--up to Prohibition and the present "war" on drugs.
Monroe's presidency offered the country a little R&R, as did that of John Quincy Adams, although the latter did keep bringing forward his High Federalist program of national mercantilism. But none of this went the full mile for the centralists and, as McDonald stresses, most government involvement in business took place at the state level. This was especially true once "[e]veryone agreed that building railroads would produce economic gains bordering on the magical" (p. 149).
It is striking that in his discussion of the Nullification Crisis, McDonald, whatever his views on tariffs, concludes that "Calhoun decisively demonstrated the soundness of his analysis, and Webster knew it" (p. 109). Daniel Webster, of course, was a great promoter of the nationalist theory of the union. Territorial expansion helped make this theoretical dispute one of more than academic interest.
A ROMAN TRAGEDY REPEATED
As if to underscore a lesson from Roman Republican history, US territorial expansion did untold damage to the theory and practice of divided powers. Faced with perhaps the biggest real estate deal in history, Jefferson had purchased Louisiana, despite his constitutional scruples. With the seizure of half of Mexico, the territorial question became central to American political conflict, especially in relation to slavery.
McDonald observes that interest-group politics resting on economic goals gave way to a moralistic "reform" politics from about 1845. Not that the old issues where exactly gone, but new issues - temperance, women’s rights, slavery - came to take center stage. Unlike the late M. E. Bradford, McDonald does not seem to consider that the slavery issue, real as it doubtless was, might have served, in part, as a stalking horse for the very national-mercantilist program dear to those who formed the new Republican party in the 1850s.
THE CRISIS OF THE UNION
In the later stages of what Clifford Dowdy called the "thirty year cold war" between North and South, it became increasingly impossible for leaders at the federal level to make lasting compromises regarding the territorial status of slavery. Southerners demanded positive federal action to address the fugitive slave problem, while Northern states nullified federal court decisions and directly obstructed federal law enforcement. The Supreme Court’s disastrous intervention in Dred Scott v. Sanford only made things worse, as did the economic depression (which affected the North more than the South), "Bleeding Kansas" and John Brown’s egotistical raid.
The rupture of the Democratic party made possible the election of Abraham Lincoln, a genuinely sectional president, and gave Southerners a casus secessionis. Here McDonald rises above the received wisdom that the Deep South seceded in a fit of rage and fear. The secessionists expected to be better off in an independent federation. He also notes the orderly way in which secession unfolded. True to their theoretical principles, Southern legislatures held elections for sovereign conventions, which would vote on withdrawal. I will add, although McDonald does not, that the process of secession was probably more democratic and representative of popular will than was the ratifying process of 1787-1788.
Another legend which McDonald casts aside is the oft-mooted notion that the Confederate Constitution was a mere uninspired "copy" of the old Constitution and a hypocritical one, to boot, because the Confederates did not write secession into it. McDonald puts this to rest and shows a good grasp of the ways in which the CS Constitution sought to prevent the rise of mercantilism at the federal level (pp. 202-204). As for wartime developments in the North, McDonald writes critically of Father Abraham’s suppression of opposition, fixing of elections, etc. (pp. 196-202).
Lincoln’s timely martyrdom let loose a struggle within the victorious North between those who believed in the late president’s silly theory (my terms) that the Confederacy had been a sort of Shay’s Rebellion writ large and those who held that the Southern states had, somehow, left the union and were, therefore, conquered territory. Lincoln’s version had the advantage of making "reconstruction" fairly easy but did little for the Radical Republicans’ program of uplifting the freedmen, punishing the Confederates, and - most important of all - keeping their party in power forevermore. Thus, they proceeded to have their Southern states and eat them, too.
McDonald does not shrink from putting this all in plain English: "A knotty constitutional problem inhered in this procedure. Either the southern states had legally left the Union or not. If they had not, no qualifications could have been imposed upon their ‘readmission,’ and their forced ratification of the Thirteenth Amendment was invalid. If they had left the Union and could not rejoin it until they met Johnson’s requirements, they were not states and had no legal right to vote on the amendment" (p. 210). As for the Fourteenth, it was even dodgier since "the southern states were forced to ratify the amendment, though the same law that required them to do so declared that they were not legally states" (p. 213).
STATES RIGHTS IN THE ABSENCE OF EXIT
McDonald notes that with the president and Congress locking horns over Reconstruction policy, the Supreme Court began quietly undoing many of Lincoln’s wartime inroads on state power. He even spots the silver lining in Texas v. White (1869). There, the Court dismissed secession with no real argument but held that the Constitution looked to "an indestructible Union of indestructible states." This at least implied that the states still held their residuary sovereignty in a system of divided powers.
For a few decades, then, the Court favored the states. In the 20th century, our many edifying wars, including the Cold War, shifted power massively to the central government. After World War II, the Supreme Court took up creative writing again, generally to the disadvantage of the states. A few recent decisions suggest a counter-trend, but as McDonald notes, the Court is a "fickle" friend, where imperium in imperio is concerned.
McDonald’s new book could not have come at a better time. It stands as a full-bore rebuttal to the confusions lately spread by Professor Garry Wills about the union and the Constitution. States Rights and the Union is sure to sow unrest in the camp of the usual suspects. Its radical message is that their whole view of our "national" life rests on a series of lies. As the Brits would say, Professor McDonald has been very brave to point this out.