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The Rallying Cry of Secession
The appeal to states’ rights is of the most potent symbols of the American Civil War, but confusion abounds as to the historical and present meaning of this federalist principle.
The concept of states’ rights had been an old idea by 1860. The original thirteen colonies in America in the 1700s, separated from the mother country in Europe by a vast ocean, were use to making many of their own decisions and ignoring quite a few of the rules imposed on them from abroad. During the American Revolution, the founding fathers were forced to compromise with the states to ensure ratification of the Constitution and the establishment of a united country. In fact, the original Constitution banned slavery, but Virginia would not accept it; and Massachusetts would not ratify the document without a Bill of Rights.
The debate over which powers rightly belonged to the states and which to the Federal Government became heated again in the 1820s and 1830s fueled by the divisive issue of whether slavery would be allowed in the new territories forming as the nation expanded westward.
The Missouri Compromise in 1820 tried to solve the problem but succeeded only temporarily. (It established lands west of the Mississippi and below latitude 36º30′ as slave and north of the line—except Missouri—as free.) Abolitionist groups sprang up in the North, making Southerners feel that their way of life was under attack. A violent slave revolt in 1831 in Virginia, Nat Turner’s Rebellion, forced the South to close ranks against criticism out of fear for their lives. They began to argue that slavery was not only necessary, but in fact, it was a positive good.
As the North and the South became more and more different, their goals and desires also separated. Arguments over national policy grew even fiercer. The North’s economic progress as the Southern economy began to stall fueled the fires of resentment. By the 1840s and 1850s, North and South had each evolved extreme positions that had as much to do with serving their own political interests as with the morality of slavery.
As long as there were an equal number of slave-holding states in the South as non-slave-holding states in the North, the two regions had even representation in the Senate and neither could dictate to the other. However, each new territory that applied for statehood threatened to upset this balance of power. Southerners consistently argued for states rights and a weak federal government but it was not until the 1850s that they raised the issue of secession. Southerners argued that, having ratified the Constitution and having agreed to join the new nation in the late 1780s, they retained the power to cancel the agreement and they threatened to do just that unless, as South Carolinian John C. Calhoun put it, the Senate passed a constitutional amendment to give back to the South “the power she possessed of protecting herself before the equilibrium of the two sections was destroyed.”
Controversial—but peaceful—attempts at a solution included legal compromises, arguments, and debates such as the Wilmot Proviso in 1846, Senator Lewis Cass’ idea of popular sovereignty in the late 1840s, the Compromise of 1850, the Kansas-Nebraska Act in 1854, and the Lincoln-Douglas Debates in 1858. However well-meaning, Southerners felt that the laws favored the Northern economy and were designed to slowly stifle the South out of existence. The Fugitive Slave Law of 1850 was one of the only pieces of legislation clearly in favor of the South. It meant that Northerners in free states were obligated, regardless of their feelings towards slavery, to turn escaped slaves who had made it North back over to their Southern masters. Northerners strongly resented the law and it was one of the inspirations for the publishing of Harriet Beecher Stowe’s Uncle Tom’s Cabin in 1852.
Non-violent attempts at resolution culminated in violence in 1859 when Northern abolitionist John Brown abandoned discussion and took direct action in a raid on the arsenal at Harpers Ferry, Virginia. Though unsuccessful, the raid confirmed Southern fears of a Northern conspiracy to end slavery. When anti-slavery Republican Abraham Lincoln won the presidential election in 1860, Southerners were sure that the North meant to take away their right to govern themselves, abolish slavery, and destroy the Southern economy. Having exhausted their legal and political options, they felt that the only way to protect themselves from this Northern assault was to no longer be a part of the United States of America. Although the Southern states seceded separately, without intending to form a new nation, they soon banded together in a loose coalition. Northerners, however, led by Abraham Lincoln, viewed secession as an illegal act. The Confederate States of America was not a new country, they felt, but a group of treasonous rebels.
When the 13 United States of America declared independence from the United Kingdom in 1776, the founders were attempting to break free from the tyranny of Britain’s top-down centralized government.
But the first constitution the founders created, the Articles of Confederation, vested almost all power in individual state legislatures and practically nothing in the national government. The result—political chaos and crippling debt—almost sunk the fledgling nation before it left the harbor.
So the founders met again in Philadelphia in 1787 and drafted a new Constitution grounded in a novel separation of state and national powers known as federalism. While the word itself doesn’t appear anywhere in the Constitution, federalism became the guiding principle to safeguard Americans against King George III-style tyranny while providing a check against rogue states.
Failures of the Articles of Confederation
The Articles of Confederation were written and ratified while the Revolutionary War was still raging. The document is less of a unifying constitution than a loose pact between 13 sovereign states intending to enter into “a firm league of friendship.” Absent from the Articles of Confederation were the Executive or Judicial branches, and the national congress had only the power to declare war and sign treaties, but no authority to directly levy taxes.
As a result, the newly independent United States was buried in debt by 1786 and unable to pay the long-overdue wages of Revolutionary soldiers. The U.S. economy sunk into a deep depression and struggling citizens lost their farms and homes. In Massachusetts, angry farmers joined Shays’ Rebellion to seize courthouses and block foreclosures, and a toothless congress was powerless to put it down.
George Washington, temporarily retired from government service, lamented to John Jay, “What a triumph for the advocates of despotism to find that we are incapable of governing ourselves, and that systems founded on the basis of equal liberty are merely ideal & fallacious!”
Alexander Hamilton called for a new Constitutional Convention in Philadelphia in 1787 where the Articles of Confederation were ultimately thrown out in favor of an entirely new form of government.
The Middle Road of Federalism
When the United States cut ties with Britain, the founders wanted nothing to do with the British form of government known as “unitary.” Under a unitary regime, all power originates from a centralized national government (Parliament) and is delegated to local governments. That’s still the way the government operates in the UK.
Instead, the founders initially chose the opposite form of government, a confederation. In a confederation, all power originates at the local level in the individual states and is only delegated to a weak central government at the states’ discretion.
When the founders met in Philadelphia, it was clear that a confederation wasn’t enough to hold the young nation together. States were scuffling over borders and minting their own money. Massachusetts had to hire its own army to put down Shays’ Rebellion.
The solution was to find a middle way, a blueprint of government in which the powers were shared and balanced between the states and national interests. That compromise, woven into the Constitution and the Bill of Rights, became known as federalism.
Two Kinds of ‘Separation of Powers’
The Constitution and the Bill of Rights created two different kinds of separation of powers, both designed to act as critical checks and balances.
The first and best-known of the separation of powers is between the three branches of government: Executive, Legislative and the Judiciary. If the president acts against the best interests of the country, he or she can be impeached by Congress. If Congress passes an unjust law, the president can veto it. And if any law or public institution infringes on the constitutional rights of the people, the Supreme Court can remedy it.
But the second type of separation of powers is equally important, the granting of separate powers to the federal and state governments. Under the Constitution, the state legislatures retain much of their sovereignty to pass laws as they see fit, but the federal government also has the power to intervene when it suits the national interest. And under the “supremacy clause” found in Article VI, federal laws and statutes supersede state law.
Federalism, or the separation of powers between the state and federal government, was entirely new when the founders baked it into the Constitution. And while it functions as an important check, it’s also been a continual source of contention between the two levels of government. In the final run-up to the Civil War, the Southern states seceded from the Union in part because of the federal government was unconstitutionally encroaching on their “domestic institutions” of slavery.
How Federalism Works in the Constitution
According to James Madison, a committed federalist, the Constitution maintains the sovereignty of states by enumerating very few express powers to the federal government, while “[t]hose which are to remain in the State governments are numerous and indefinite.”
Article I Section 8 contains a list of all of the “enumerated” powers that are exclusively delegated to the federal government. Those include the power to declare war, maintain armed forces, regulate commerce, coin money and establish a Post Office.
But that very same Section 8 also includes the so-called “Elastic Clause” that authorizes Congress to write and pass any laws that are “necessary and proper” to carry out its enumerated powers. These powers are known collectively as “implied powers” and have been used by Congress to create a national bank, to collect a federal income tax, to institute the draft, to pass gun control laws and to set a federal minimum wage, among others.
Other than that, the Constitution grants almost all other power and authority to the individual states, as Madison said. While the Constitution doesn’t explicitly list the powers retained by the states, the founders included a catch-all in the 10th Amendment, ratified in 1791:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Those so-called “reserved” powers include all authority and functions of local and state governments, policing, education, the regulation of trade within a state, the running of elections and many more.
In the United States, federalism has proven a successful experiment in shared governance since 1787 and provided the model for similar federalist systems in Australia, Canada, India, Germany and several other nations.