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Getting States' Rights Right - Page 2
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onservative McDonald may be, but his conservatism falls more in the mold of Alexander Hamilton than in that of John C. Calhoun, whom he treats with less respect than that great if problematic figure deserves. McDonald's tough mind does not always accord with his heart, which, though by no means soft, sympathizes with those who yearn for the "near and familiar" and suspect "the remote and abstract." Thus although he betrays considerable sympathy for people who bear the brunt of centralized policies that affect classes and regions unequally, as a well-grounded student of economic history, he regards Hamilton's program of national economic intervention as an attempt to do what had to be done if America was to realize its promise of becoming a great power. Indeed, William Henry Trescot, of South Carolina, America's first great diplomatic historian, whom McDonald regrettably does not mention, warned his fellow secessionists as early as 1850 that Calhoun's doctrine of states' rights made no sense in a world of competing nation-states. The South's problem, Trescot insisted, was not that the federal government had too much power but that that power was in the hands of the South's enemies. He had no doubt that an independent Confederacy, if it intended to survive, would have to swallow a heavy dose of political centralization.

McDonald wrestles with this conundrum in a concise and compelling account of political developments from the Revolution through Reconstruction which is marred only by a few trivial factual errors. He writes that when in power, Jefferson, Madison, and Monroe, all promoters of states' rights, strove to reduce the federal government but ended by defending and strengthening its power in essential respects. Jefferson's Louisiana Purchase looked extra-constitutional to almost everyone, including Jefferson, but most agreed that it was necessary for the protection of vital national interests and to remove the threat posed by Napoleon's ambitions in the Americas. Establishment of the Bank of the United States, federal promotion of internal improvements, and implementation of a protective tariff could all be defended as sound economic policy, but their constitutionality was by no means clear. Jefferson's embargo, an effort to keep the United States out of war, sealed American shipping off from the transatlantic trade and threatened economic ruin for New England, which raised the banner of states' rights against it. Time and again, despite howls from radical states'-rights advocates, Presidents committed to states' rights have found it necessary to enhance federal power. And no, we cannot shrug off the actions of Jefferson, Madison, and Monroe, not to mention the young Calhoun, as manifestations of bad faith by men who opposed federal power only when they could not control it. They had to face exigencies for which their theory and experience had not prepared them. They did their best to accommodate the perceived national interest while upholding states' rights as far as they thought safe.

In an especially noteworthy discussion McDonald properly characterizes Andrew Jackson as a champion of states' rights, recalling Jackson's defiant support for state-directed Indian removal, his qualms over tariffs, his veto of the Maysville Road Bill (which was designed to promote federally sponsored internal improvements), and his destruction of the Bank of the United States. Indeed, on more than one occasion Jackson spoke of "state sovereignty," thereby appearing to advocate the most extreme version of states' rights. Calhoun and the South Carolina nullifiers, whom Jackson threatened to hang for treason, demanded to know how his support for Georgia's defiance of the Supreme Court's pro-Indian directives differed from their own assertion of a state's right to nullify a federal law and interpret the Constitution for itself. The consequences of Jackson's course did not always prove attractive, and McDonald unsparingly hammers his banking policy in particular as economic madness. Yet "the legacy of Andrew Jackson was a mixed bag." His commitment had a firm limit: like Lincoln after him, he would not abide nullification, secession, or any action that threatened to sever the Union. Hence he stands as one of the foremost architects of American national consolidation. Whatever his intentions, by declaring nullification and secession beyond the pale and making the Union sacrosanct, he inadvertently stripped the states of constitutional means to enforce rights he acknowledged as theirs.

ne of the more important contributions of States' Rights and the Union lies in its demonstration that the advocates of concentrated federal power have often shamelessly invoked the doctrine of states' rights to promote immediate political objectives. McDonald reminds us that the New England Federalists posed a secessionist threat in their opposition to the embargo and the War of 1812, and that the northern antislavery forces invoked states' rights in their promulgation of "personal liberty laws" designed to protect runaway slaves. Wishing to be evenhanded, he also accuses the southerners of an opportunistic abandonment of states' rights to secure the Fugitive Slave Act and to demand federal protection of slavery in the territories. Here I find his judgment questionable. Since proslavery strict-constructionists did not deny the power of the federal government within its appropriate sphere, they appealed directly to the Constitution, which had assigned such power to it.

The struggle for the western territories raised a question that McDonald bypasses. Southerners had always claimed that the slave states would not have ratified the Constitution in the first place had they not been assured of federal respect for their rights as slaveholders. They reasonably denounced the attempt to block slaveholding in the territories as a repudiation of what had been understood as a tacit compact among different states with different social systems—a contemporary version of the twentieth-century doctrine of "peaceful coexistence" between capitalist and communist states.

McDonald's admirable account of the vicissitudes of the struggle over states' rights from the early Republic onward touches on a related matter. The doctrine of states' rights always had an army of northern supporters. Indeed, McDonald notes that the most radical of the antislavery governors invoked it against Lincoln's policies, which they viewed as too timid. Yet over time states' rights came to be seen, however inaccurately, as a peculiarly southern doctrine—plausibly so, because it increasingly became reigning doctrine in the South while being hotly contested in the North. McDonald, in an impatient dismissal of the romantic southern-conservative notion that slavery did not lie at the heart of the sectional conflict, discusses the underlying problem only in passing and in much too gingerly a fashion. The doctrine of states' rights did not originate in the South as a self-serving defense of slavery, but it did thrive there and display a force well beyond that which could be sustained in the North. Slavery, understood as a social system, established powerful tendencies toward local rule, in contradistinction to the centralizing demands created by the capitalist social system of the North. A strong capitalist system embedded in a world system of rival states requires a high level of political centralization for reasons of national security. No less does it require considerable centralization to regulate internal competition, bring order to banking and commercial policies, and protect those exposed to corporate exploitation. Hence, although the doctrine of states' rights retains significant force and makes just claims, it has evolved within increasingly narrow limits.

A review of the even broader application of the Bill of Rights to the states illuminates that narrowing of limits. The Bill of Rights forbade Congress from imposing an established church, but it did not forbid the states from doing so. The disestablishment of the Anglican Church in Virginia and of the Congregational Church in Massachusetts occurred later than the passage of the Bill of Rights and entirely under state auspices. For that matter, Thomas Jefferson and others who opposed the Alien and Sedition Acts did not question the power of the states to curtail civil liberties. Indeed, North Carolina, to cite one outstanding example, long barred Catholics and Jews from holding state offices. Libertarian interpretations of the Bill of Rights are of recent and dubious origin, and, more to the point, the people have rarely had an opportunity to express their views. Since the Fourteenth Amendment is now taken as having federalized the Bill of Rights and imposed it upon the states, the issue appears settled. But the Fourteenth Amendment was promulgated in a flagrantly unconstitutional way that in effect allotted the spoils of the Civil War to the winners. The Civil War, liberals joyfully announce, settled the constitutional questions. Indeed so. But no fig leaf of pretended constitutionality can disguise what was a revolutionary act. To put it another way, a more telling illustration of the principle that might makes right can hardly be imagined.

McDonald's epilogue, "The Doctrine Transformed," sheds light on the development of that narrowing of limits. It provides an overview of events from 1876 to the present which, among its other virtues, discusses the importance of states' rights in the struggle to curb corporate power and to initiate many of the social and economic reforms for which the left, especially, has fought. In exploring these complexities McDonald places us on guard against the latest spins. Today we hear much about a "new federalism" and the federal government's cession of much power to the states, which supposedly restores power to the people. But more often than not the cession creates a mirage and is no better than a bureaucratic convenience. For although the states may assume authority over welfare or certain facets of education, the policy "guidelines" come from above. In practice, that means imposition of a homogenized national policy, which the states must finance and administer. The "people" have no more power to formulate policies appropriate to their local conditions than they had before, although the charade may well bring issues closer to home and encourage the people to find ways to express their will.

The argument McDonald drives home in his epilogue highlights the theme of the book: The claims of the federal government and the claims of the states have resulted in a tension, sometimes creative and sometimes not, the specifics of which undergo constant reassessment and shifts in balance. A shift toward states' rights has been discernible in recent decades, but within limits much narrower than those advocated by Jefferson and Jackson, not to mention Calhoun. Our Republic arose and has thrived in a constant struggle to effect the most efficacious balance. We would therefore do well to end the petulant, not to say demagogic, categorization of the rival viewpoints as "progressive" or "socialist" and "racist" or "reactionary." Throughout the history of the United States the contending political forces—Federalists and anti-Federalists, Whigs and Democrats, free-soilers and slaveholders, liberals and conservatives—have agreed on the principle of the sovereignty of the people. They have quarreled over the best means for allowing the people, however defined, to express their will, and this has often translated into a quarrel over which level of government best encapsulates that will. Since there is no definite answer to that question, we must live with considerable tension. We need at least to separate the real issue from the spurious—and to do so, we can best begin by reading this outstanding book.

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Copyright © 2001 by The Atlantic Monthly Group. All rights reserved.
The Atlantic Monthly; March 2001; Getting States' Rights Right - 01.03; Volume 287, No. 3; page 82-89.