The Political Theory of States' Rights

(I wrote this essay in 1991 and recently came across it. It read better that when I first read it over in a rush to get it to my advisor. I thought I would post it here.)


In 1786 the new United States of America faced a choice, not between federalism and anti-federalism, but between nationalism and anti-nationalism. As Clinton Rossiter noted in 1787, The Grand Convention the issue was whether it would be a country like England or France; or a "country" like Germany or Italy. The larger states, notably New York and Virginia, were confident that they could go it alone; while the smaller states such as Delaware and New Jersey feared they would be devoured in effect, if not in fact, by the larger states.

By the end of the revolution, states were imposing restrictions on river traffic, interstate trade, fishing rights, and a variety of other issues that usually arise between independent nations. Fishing fleets from Virginia and Maryland actually fired on each others' vessels. New York's Governor Clinton tried to "acquire" Vermont and was frustrated by Massachusetts and New Hampshire.

To further aggravate the situation, the treaty of Paris gave the new nation most of the country between the Appalachians and the Mississippi. These vast lands were parcelled out among the states to administer until such time as they were settled and could become states in their own right. The large states saw the western lands in much the manner that England had seen the colonies and meant to exploit them similarly. Of course the small states had no claim on the western lands and were reluctant to see any national resources directed toward their development -- not that national resources were available for that or any other purpose in 1786. It is in the first stirring of a national movement, that would lead to the Constitutional Convention in 1787, that the seeds of states' rights were planted. The nationalist spirit that animated the men of Philadelphia co-existed with a feeling, and belief that the states (at least some of them) could have emerged as self-sufficient entities given time. The smaller states, unable to survive on their own would have joined with their larger neighbors. The belief that they could have been self-sufficient evolved, among the ardent states' righters over the next 70 years, into a belief that somehow they had been self-sufficient.

After the convention, the anti-nationalists made common cause with the anti-federalists. Indeed many of the anti-federalists were anti-nationalists the year before. Among their leaders were George Clinton and Thomas Jefferson. The position of the two men bears some examination.

Clinton was the governor if New York, serving his fifth term in 1787. He was nicknamed "the old incumbent". Clinton was one of the most powerful men of his day. His political machine controlled much of the patronage of New York, and he effectively played the aristocratic patroons of the Hudson Valley against the wealthy bankers and businessmen of New York City. Clinton believed that New York was, of all the states, in the best position to break away from the others and go it alone. He actively opposed the constitutional convention by sending a delegation that consisted of two ardent anti-nationalists, and one nationalist (the nationalist, Alexander Hamilton became so impatient with his fellow delegates that he left the convention in a rage, only returning for its closing ceremony).

Once Clinton saw that the constitution was going to be ratified, he threw his lot in with those men who insisted on interpreting the relationship between the states and the federal government in the loosest terms possible. Led by Thomas Jefferson, this group fought for a Bill of Rights, which enumerated the rights of the states and citizens which the federal government could not infringe.

Jefferson's beliefs seem based in Rousseau's interpretation of man as "noble savage." Rousseau proposed that man was at his best the closer he was to earth, and his natural state. To Jefferson, this meant man as farmer and planter. Jefferson's idea of a just government was one that ensured basic liberties, offered protection to its citizens, and otherwise stayed out of their lives. Jefferson conceded the necessity that government must have authority to tax and regulate trade, but thought that these functions should be carried out at the level of government closest to the yeoman farmer/citizen as possible; which meant at the county and state level. Jefferson was willing to concede to a federal government only those powers that were needed to address issues that transcended the states; maintaining a navy, gathering the militias to resist foreign invasion, diplomacy, interstate trade.

Throughout the last years of the 18th century, and during his eight years as President, Jefferson often expressed the thought that the United States might well divide along sectional lines into independent countries. Not until his later years did he demonstrate concern about the sectional issues that threatened national unity. In 1821 he wrote of the slave issue that culminated in the Missouri Compromise, that it "was a fire bell in the night, striking the knell of the union." However, in the years before, Jefferson's espousal of a loose-knit federation of states and a weak central government contributed to his fears.

In the early years, the divisions were along economic lines. New England considered secession in the 1790's and early 1800s'. The trans-montane was always abuzz with secession rumors, the Burr conspiracy and the Spanish conspiracy being just two occasions that the rumors echoed on the banks of the Potomac. After the War of 1812 however, the tensions began to occur on a different fault, and states' rights assumed a new energy and a new meaning.

The issue was slavery. And the debate turned on economic and, increasingly, moral points. After international slave trading ended in 1808, the expense of purchasing and maintaining slaves increased. Never very profitable in the north, slavery all but died out north of the Mason-Dixon line by 1820. In the south however, it was a thriving and effective system of labor.

The problem was that it was too effective. With slavery, and a generous climate, the southern states made little progress toward a diversified economy. There was little outside of agriculture; some shipping from New Orleans, Charleston, and Baltimore -- and limited industry in Birmingham, Alabama and the northern reaches of Virginia.

The south's agrarian life depended heavily on the north's capacity to process raw commodities into marketable goods. The north, in turn, depended on a certain supply of raw materials to keep their factories working. To ensure that supply, the north enacted a series of tariffs that made it uneconomical for the south to trade directly with foreign buyers. The tariffs kept the cost of southern cotton artificially low to northern buyers, while European buyers were kept out of the action.

There was no small degree of southern resentment over the tariffs. Indeed the first secession crisis was caused by the "Tariff of Abominations” of 1828. The tariff so enraged South Carolina's Senator John C. Calhoun that he enunciated a proposal that states, under the sovereign status they enjoyed under the constitution, had the right to declare any federal act "null and void" within the confines of the state. If need be, the states could individually break the pact with which they ”voluntarily” joined the union, establishing themselves as separate political entities.

The flaws in Calhoun's arguments are obvious. His argument presumed that at some point in the past the states functioned as independent political entities. It has been shown previously that some in the larger states believed that they could function independent of the others, and that this belief took on a fictional quality, particularly in the south, that they actually did function in that manner.

Calhoun's argument also ignored the fact that four states, including New York, didn't ratify the constitution; yet all chose to subject themselves to its terms, should it be ratified by two-thirds of all the states.. To argue, therefore, that the states joined as a nation; agreeing with the pact as it existed at the time, and reserving the right to withdraw at a later date, ignores the reality that four of the states joined in spite of the pact. Had there been reservation, they wouldn't have joined in 1787. Simply put, they placed an American nation ahead of their own state's rights.

The tariffs were troublesome to the south because slavery was becoming more expensive. Moreover, slave property was, like land, not particularly liquid. As the tariffs reduced southern options in trade, and impeded commerce, slavery became an increasing economic burden. This raised a second problem; what to do with the slaves if they grew too costly. In the eyes of the southerners, they couldn't just be freed.

By the mid-1820's many southerners were terrified that the slave rebellions that wracked the Caribbean would spread to the United States. In 1831, the nightmare happened. A Virginia slave named Nat Turner, and some of his followers went on a killing spree that lasted several days and resulted in scores of dead. They faced a dilemma, the slaves couldn't be freed -- not without tremendous financial loss and social disruption -- and they had to be kept under control, lest another rebellion occur.

Meanwhile, in the north, a small but vocal abolition movement began demanding immediate abolition and even encouraged slave rebellion. These event, occurring at the same time that Calhoun introduced his arguments for the states' rights to void federal laws and even withdraw from the union, catalyzed a new and virulent secession movement; one that would require a violent civil war to quell.