Getting States' Rights Right

The first comprehensive history of a much misunderstood doctrine

By Eugene D. Genovese

States' rights, Vernon L. Parrington wrote in Main Currents in American Thought (1927), "was not an abstract principle but an expression of the psychology of localism created by everyday habit." No, Parrington was not a southern conservative, much less a blood-and-soil reactionary. A decidedly left-wing, in fact radical, midwesterner, he emerged as a prime architect of the "progressive" interpretation of American history. Forrest McDonald, who makes a similar point from a more conservative perspective, should nonetheless expect to be labeled a neo-fascist for writing, with eminent good sense, "Programmed into the human soul is a preference for the near and familiar and a suspicion of the remote and abstract."

The doctrine of states' rights provokes fierce negative responses and much knee-jerk denunciation, especially among those who do not have a clue to its meaning. Yet not all of the responses can be attributed to ignorance and ideological bias, for the doctrine's peculiar political history has had a dark side. As McDonald ruefully observes, twice in American history it became identified with discreditable causes—slavery and racial segregation—with which it has no intrinsic connection. Those who insist on an intrinsic connection and dismiss the doctrine as a mere rationale for reactionary politics have a serious problem: If the defenders of slavery and segregation rested their constitutional cases on states' rights, so did the progressives who strove to curb the power of entrenched corporate wealth. Thus Parrington wrote that the repudiation of states' rights by those who properly opposed slavery proved "disastrous to American democracy," because it removed the last brake on the power of big capital and surrendered the country "to the principle of capitalistic exploitation." Indeed, although we tend to think of federal intervention as "progressive" and the relegation of regulatory power to the states as "reactionary," the historical record shows nothing of the sort. After the Civil War the federal government, notably the courts, smoothed the way for big-business combinations ("pools," "trusts"), and it was the states that initiated restrictions.

Caricature of President Andrew Jackson Parrington and others largely interjected their reflections on states' rights en passant, and their work does not gainsay McDonald's claim that no one has attempted a comprehensive history of the subject. McDonald brings exceptional credentials to this task, for he ranks among the most learned and incisive of American historians, as readily at home with constitutional history and theory as with intellectual, political, and economic history. In particular he brings his considerable acumen to bear on knotty problems that may seem abstract but have grave and direct political consequences. The nature of "sovereignty" and the possibility and desirability of dividing it has absorbed political theorists since ancient times and especially absorbed the Founding Fathers, who made a Herculean effort to establish a republic of an unprecedented kind over a territory vast enough to constitute an empire. McDonald works through the theoretical formulations and attendant practical consequences with a sure hand. No small bonus: he writes well and has a gift for explaining complex theories in plain and often spirited English that readers without a Ph.D. can follow easily.

A word on his credentials: His array of groundbreaking books, beginning with seminal studies of the founding of the federal government and including a study of early American economic and political thought, would have amply justified his becoming president of one or all of the leading establishment historical associations and winning every prize in sight. (Do yourself a favor and at least read his illuminating The American Presidency: An Intellectual History [1994].) That he has not received the honors he has earned illustrates the extent to which the profession wallows in neo-McCarthyism, systematically ignoring conservative historians when it does not slander them. McDonald is conservative, but he cannot be pigeonholed. A bold, independent thinker, he demolishes the shibboleths of the right as readily as those of the left. In States' Rights and the Union he provides an indispensable history, replete with wise assessments, that may serve as a starting point for those, whether left or right, who eschew soapbox oratory and wish to form sound judgments on an intractable issue that has been central to American political experience and is destined to remain with us.

Because destined to remain with us it most certainly is, as the miseries that afflicted the Republican coalition of the Reagan-Bush years made clear. From the beginning only the prestige and political skill of Ronald Reagan papered over the ideological gulf that separated the many factions and tendencies of his coalition. The fault line in what under less able leadership would have been an unstable alliance ran deep. On the one side stood bold free-marketeers and libertarians—classic nineteenth-century liberals who continue to display their sense of humor by describing themselves as conservatives. On the other side stood traditional conservatives, who have always distrusted the market and who enlist their passions on questions of public morality and social policy. On the one side stood people with a rosy view of human nature that has become indistinguishable from the rosy view of the left in its celebration of the beauties of "human liberation." On the other side stood people who, if they do not necessarily uphold the doctrine of original sin, see humanity as sin-prone and regard the cry for "liberation" as an irresistible invitation to unleash the darker side of human nature. The one side thinks that everything, including religion and morals, should be a matter of consumer choice; the other side insists on the maintenance of firm moral standards. Here, however, we focus on the implications for federal-state relations. The traditionalists wanted the federal government stripped down to what they considered its bare essentials, with power returned to states and localities, but those who prevailed had another idea. Put baldly, it came to this: Are you crazy? We finally have the federal government under our control; good sense dictates that we use its power to advance our program. And it might have worked, had the Reaganites been able to put together a coherent program.

The amusing spectacle of the recent presidential vote in Florida should remind us of the persistence of the federal-state dichotomy. There was, after all, something delicious in hearing Al Gore's entourage and the left-wing justices of the U.S. Supreme Court, who normally do not even try to hide their enthusiasm for federal centralization, suddenly announce their dedication to states' rights, while the Republicans, who only recently converted to the doctrine, suddenly reverted to their historical commitment to federal power. Instead of leveling charges of inconsistency or, worse, hypocrisy, we would do better to reflect on the enduring tension among people in both camps who, in their more sober moments, recognize that the real quarrel concerns the proper balance between just claims.

The doctrine of states' rights has long been confused with separate issues—strong versus weak or unobtrusive government, and the relation of judicial to executive and legislative power. McDonald skillfully guides us through these problems, which the Florida fiasco again brought to the surface. For better or worse, John Marshall and his successors on the Supreme Court established the principle of judicial review, and the country has accepted it with surprisingly little resistance. Even so, the Court had to proceed slowly in the face of political resistance, and not until the Dred Scott decision did it forcefully reassert Marshall's doctrine. But it has gone largely unnoticed that the application of judicial review at the federal level did not imply its application at the state level. Before the Civil War the South, for example, had many distinguished opponents of federal judicial review who nonetheless championed the principle within the states. Conversely, as McDonald records, opposition to the principle resulted in the Confederacy's never establishing a Supreme Court. (Little in the recent events in Florida was more ludicrous than the pretense that the state supreme court could simply assert ultimate jurisdiction over a matter that the state legislature plausibly claimed for itself.)

As for the mistaken notion that the doctrine of states' rights implies weak or unobtrusive government, McDonald disposes of the confusion in a masterly fashion by demonstrating that from the earliest days of the Republic the most important advocates of states' rights supported strong, active state government. America's first great advocates of "diversity," they opposed the centralization of power in Washington—which tended to result in homogenization. They insisted that within the limits imposed by considerations of national safety, the people of the several states ought to exercise power in accordance with their particular experience, needs, and sensibilities. As such, advocates of states' rights usually constituted the party of democratic resistance to the pretenses of a federal government that more often than not served the interests of entrenched economic power. In tracing the ascendancy of the states'-rights forces before the Civil War, McDonald shreds the "myth" of laissez-faire by citing the vigorous measures taken by the states to promote economic development and in some cases, most notably Pennsylvania, to protect working people and consumers from corporate exploitation. Chief Justice Roger Taney is remembered primarily for the infamous Dred Scott decision, but he nonetheless ranked as a progressive and a strong advocate of state-sponsored economic development. When, like many Jacksonian Democrats, Taney advanced the cause of states' rights, he believed, with good reason, that he was enhancing the power of the people of the states to provide for their own well-being.

Conservative 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.

One 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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