Chapter 4: State’s Rights
4.1 Freedom and State’s Rights: How it used to be
The last chapter dealt with the primary issue of decentralizing government. The goal is to decentralize as much as possible, ultimately leaving individuals as free as possible and dealing only with local units of government. We also saw how America once had this ideal, how it was lost, and we talked about ways to begin taking it back. Now it’s time to talk about the important role of State’s Rights.
A vital lynch pin in American history related to the protection of local government is the old notion of State’s Rights. State’s Rights is a vital check on national tyranny, a link in true federalism, and a truer representation of the way American was settled and founded. Now I’ve already said that State’s Rights is not a good enough solution to national tyranny. But we need to note that if we recognize and restore their original role, States could provide 1) a necessary weakening of centralized tyranny, and 2) an umbrella of protection against the central government under which local governments can (or must) begin to work independently of federal regulation and interference. In fact, States could provide the needed impetus for local communities to develop greater independence. In short, even if not sufficient or ultimate, State’s Rights may be a necessary step along the way. More importantly, it is vital for understanding just how bad federal tyranny has become. For these reasons I include a chapter on it in this project.
As I said in the last topic, the American colonies were originally settled as feudal land grants, chartered by the English crown. Government was established based on fiefs of private property, owner control, and very clear contractual agreements between levels of government. It is necessary here to remember that each colony was established as a separate ownership, separate charter, separate governments, separate jurisdictions. The operative word in regard to the colonies—later “State”—was “separate.” When the colonies declared independence, they established themselves as sovereign States, not a single nation. This history forms the basis for the old claims about State’s Rights. They have been largely ignored and maligned, but the argument is both viable and vital. Let’s take a brief look.
We have already covered much of the history regarding the nationalist takeover of this land. We’ll only summarize here what we’ve already covered, and add a little. Within three decades of the ratification of the Constitution—within the generation of those who debated—virtually all the fears of the anti-federalist opponents of the Constitution had come true. Power had been centralized at the national level in regard to the judiciary, the military, taxation, legislation, commerce, and much else. Nevertheless, while political power had been centralized in reality from day one, popular sentiment remained starkly divided. The majority of common Americans assumed the State’s rights view, while the victorious party in the Constitutional battle favored the Nationalistic view which was in place. The Jeffersonian party called “Democratic Republicans” represented the majority, while the Federalist Party controlled the day.
The debate over State’s rites ultimately hinged upon the interpretation of the nature of the Declaration of Independence. The anti-federalist (and thus, later, Jeffersonian) side noted what seemed like common sense: once the colonies “dissolved the political bands” that connected them to the British Crown, they immediately became thirteen “Free and Independent States.” These thirteen countries—as we would understand their position today—recognized their need to band together for strength and thus “united,” or confederated. In this unity they declared their independence, and in this unity they vowed to support each other in defending it. The same group that drafted the Declaration immediately set about writing a constitution for the arrangement, and the resulting document was called the Articles of Confederation. Finished in 1777, this “Confederation” of separate States was ratified formally in 1781. It stated clearly in Article II, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”
The nationalist side of the debate, nevertheless, emphasized the unity at the expense of the plurality. Their response to the anti-federalists was that “the colonies declared their independence not individually but unitedly, and that they had never been independent of one another.”1
This argument is clearly seen in the debates during the ratification period. Perhaps the most famous remark comes from Mr. “Liberty or Death” himself, Patrick Henry. He complained of the Convention,
[W]hat right had they to say, We, the People[?] My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask who authorized them to speak the language of, We, the People, instead of We, the States? States are the characteristics, and the soul of a confederation. If the States be not agents of this compact, it must be one great consolidated National Government of the people of all the States. . . .
The people gave them no power to use their name. That they exceeded their power is perfectly clear.2
This argument threw down the gauntlet on the issue of nationalism. Everyone knew the Constitutional Convention had been resolved by Congress “for the sole and express purpose of revising the Articles of Confederation,”3 and this meant honoring the sovereignty of the States. But this was the very thing the forces behind the Convention wished to change. They got their way, but only at the disdain of what everyone clearly agreed upon: this move squarely contradicted the Articles of Confederation. And thus in doing so, they had to provide some justification for why the Articles should not only be revised, but completely trashed and replaced.
Thus arose the new argument that the Articles of Confederation “were a defective instrument of a preexisting union”4 which departed from the true spirit of a single national people as allegedly expressed in the Declaration, and that the newly proposed Constitution was returning to that principle. The new position was expressed eloquently, for example, by General Charles Cotesworth Pinckney, who urged the Constitution on the South Carolina legislature:
The separate independence and individual sovereignty of the several states were never thought of by the enlightened band of patriots who framed this Declaration; the several states are not even mentioned by name in any part of it,—as if it was intended to impress this maxim on America, that our freedom and independence arose from our union, and that without it we could neither be free nor independent. Let us, then, consider all attempts to weaken this Union, by maintaining that each state is separately and individually independent, as a species of political heresy. . . .”5
After this position won the day, the victorious Federalist party (and its historical successors: the National Republicans, the Whigs, and the Republicans) used this argument as a means of suppressing the “political heresy” of States rights.
The most vehement elocution of this position appeared when National Republican John Quincy Adams gave a two-hour lecture to the New York Historical Society in 1839—the Jubilee of the Constitution. Adams wrote,
[A] convention of delegates from eleven of the thirteen states, with George Washington at their head, sent forth to the people an act to be made their own, speaking in their name and in the first person, thus: “We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty, to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” This act was the complement to the Declaration of Independence—founded upon the same principles, carrying them out into practical execution, and forming with it one entire system of national government.6
He followed a few pages later with this further explanation:
It is not immaterial to remark that the signers of the Declaration, though qualifying themselves as the Representatives of the United States of America, in general Congress assembled, yet issue the Declaration, in the name and by the authority of the good people of the colonies—and that they declare, not each of the separate colonies, but the United Colonies, free and independent states. The whole people declared the colonies in their united condition, of right, free and independent states. . . .
But there still remained the last and crowning act, which the People of the Union alone were competent to perform—the institution of civil government for that compound nation, the United States of America.7
Adams carries on for pages extenuating his argumentation to the finest details of the situation. And yet for all of its detail and rigor, it is easy to get the feeling he was protesting too much. For all of his preaching to the choir, it is important to remember that this particular choir was composed of a minority of the population—a controlling, wealthy, entrenched minority, but a minority nonetheless. The Democratic-Republican party had grown so overwhelmingly popular that the Federalist faction was forced into oblivion—its nationalist sentiments only allowed to live on as they reemerged within a faction of the Democratic-Republicans called the National Republicans. This was Adams’ party. Regardless of how institutionally victorious the nationalists’ cause had been, the sentiments of State’s rights still gripped a majority of freedom-loving hearts across America. A very tense situation was brewing in which major popular sentiment wished for State’s rights and more local control, while the elites such as Adams continued to preach vehemently the necessary status quo of Union and thus federal government domination.
The plan of government now proposed [the Constitution] is evidently calculated totally to change, in time, our condition as a people. Instead of being thirteen republics, under a federal head, it is clearly designed to make us one consolidated government. . . . This consolidation of the states has been the object of several men in this country for sometime past. Whether such a change . . . can be effected without convulsions and civil wars; whether such a change will not totally destroy the liberties of this country—time only can determine.8
Time told. While the old debate between nationalists and State’s rights advocates was settled on paper in Philadelphia with the Constitution, that settlement was not fully manifested until it was written in blood at Gettysburg. At that site, Lincoln gave an eloquent eulogy for State’s rights, if only in passing: “Four score and seven years ago our fathers brought forth on this continent a new nation. . . .”
That was the heart of the debate, which Lincoln, victorious at Gettysburg, was affirming. The “fathers” had not confederated several States, no. The brought forth a single, one, “a new nation”—or as the anti-federalists had so often warned, “one consolidated government.”
Of all of the major advances that the Federalist party touted as benefits of the new Constitution, not one was ever carried out successfully, eventually, without the force of arms. The Civil War was only the climax of that movement.
Despite how things were eventually settled, the nationalists’ argument in favor of the primacy of the government of the Union was not nearly as sound as Adams, Lincoln and company would have us believe—for at least a few reasons.
First, The language of the Declaration of Independence makes it clear that the States, though united for a particular purpose, still viewed themselves as plural independent sovereignties in doing so.
While the Declaration contained language of “the Right of the People” and of “one people”—thus favoring the Federalist side—it nevertheless concluded by speaking of the new independence not of a single nation but of the “free and independent States” in the plural:
these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.
“These united Colonies are . . . Independent States” is a very odd phrase if, in fact, the goal had been to create a single government.
So often do the details make the difference. In fact, it is of great importance that we notice just how even the capitalization of a single letter changes the whole nature of the discussion. In that final paragraph of the Declaration, the original text begins, “We, therefore, the Representatives of the united States of America. . . .” The same text also refers to “these united Colonies.” Note in both cases that the word “united” is not capitalized; it is, therefore, a mere adjective and not a proper name. The phrase is not referring to a single government or entity called “The United States of America,” but rather to the coming together of the “Colonies” or “States of America.” Yet, when Adams tells the story, he argues that the assembly which drafted the Declaration were “qualifying themselves as the Representatives of the United States of America.” He emphasized “not each of the separate colonies, but the United Colonies.”9 Thus did the assembly’s mere adjective “united” become a proper name “United” in the mind of the nationalist—and this was the basis of his reasoning. Adams thus imposed his nationalist view on the Declaration’s own words. In other words, he had to deny those Representatives’ clear and very definite conclusion in order to charge them with not concluding their job.
Second, it is helpful in this regard also to understand the usage of the term “State” in the Declaration. Today Americans generally think of a “state” only as one of those divisions within the nation of the United States. We tend to consider a state simply a secondary unit of government below federal or national government. A “state” is less than a “nation.” But at the time of the Declaration this was not so. A “State” was regarded as a free and independent, stand-alone, unit of government subject to no other body. A nation was considered a lesser group, often based only a common language. Noah Webster said in his 1828 dictionary under “NATION”: “It often happens that many nations are subject under one government,” and such a “whole body of people united under one government, whatever may be the form of the government” defined a STATE.
The Declaration did not declare the colonies a free and independent nation, or even a free and independent State, but in the plural, “Free and Independent States.” And in calling Britain herself a “State” as opposed to a “nation” as we would view it today, the Declaration seems to equate each of the American “States” with her status, and thus exalts each to the status of what we would regard as nations today. Thus it says that “as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do”—all things that mere constituent parts of a single state may not of themselves rightly do.
Finally, the nationalist argument was an ad hoc novelty, conceived of only as a justification of the Constitution. It was not heard or explicated by anyone before the Convention or ratification process. The State’s rights doctrine, however, was immediately expressed after the Declaration in the Articles. These were not challenged at the time, and no one objected to them on the grounds that the colonies were actually acting as a united whole.
Whatever else can be said in defense of having a single, powerful, centralized national government is to the side here. America was not originally settled that way, the colonies did not declare their independence that way, the original instrument of government written by the same people who wrote the declaration did not confederate in that way, and thus State’s rights seems to be the original American way. Whatever undesirable associations became associated with State’s rights at a later date must be set aside from the issue itself for the purposes of this discussion.
For further detailed discussion of State’s rights, I recommend the book by James Jackson Fitzpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery Co., 1957). Overlooking Fitzpatrick’s support of segregation, his scholarship in regard to the issues is very good, and his writing is very warm and engaging.
Now we have already discussed a lot about how State’s rights have been trampled and lost over the years. There is still more to tell about this story, however. In the next discussion, we will cover some of the important but not well-known aspects of this story.
- Herbert J. Storing, The Complete Anti-Federalist, 7 vol. (Chicago: University of Chicago Press, 1981), 1:13. [↩]
- Storing, 5:211. [↩]
- See Journals of the Continental Congress, 32:74. [↩]
- Storing, 1:13. [↩]
- Storing, 1:82n40. [↩]
- John Quincy Adams, The Jubilee of the Constitution (Powder Springs, GA: American Vision, Inc., 2011), 39. [↩]
- Adams, The Jubilee of the Constitution, 42. [↩]
- Storing, 2.8.4. [↩]
- Adams, Jubilee, 42. [↩]