Federalism, States Rights and the Civil War

Mrs. du Toit says one of her pet peeves is people that try to revise history. It is one of mine as well.

The national conflagration known as the Civil War as not just about slavery as many current revisionists want to believe, but slavery was an important part of the fuel that flared into war, and emancipation was used as a weapon during the war. The spark that set the fire was the election of Abraham Lincoln in 1860, but the embers had been smoldering since the foundation of the nation.

Even during the Constitutional Convention there were two sides (there always are) and they were diametrically opposed on the issue of the role of the national government. The Federalists, led by Alexander Hamilton and John Adams, favored a strong, stable, centralized government which could enforce uniformity in national affairs. The Democratic-Republicans, led by Thomas Jefferson and James Madison, favored a weak national government and strong, sovereign, state governments as they felt these were more responsive to will of the people.

It must be remembered that at this time, there was no such thing as national citizenship. Individuals were citizens of states and the state governments were responsible to the citizens. The national government was seen as a government formed by the people to govern the common interests of the states on a national level. The House of Representatives was directly elected by the people, but the Senate was not elected but appointed by the state governments as representatives of the states. Also, political parties did not have the recognized role that they now have in American politics. The Hamiltonians and Jeffersonians did not really become parties until the election of 1800 and even then, their role was ill-defined.

The nation was struggling to establish its identity. Hamilton had a vision, Adams had a vision, Madison had a vision, Jefferson had a vision. In that order, those visions created a spectrum of political ideas and it was thought by most at the time that only one of these vision could successfully guide the new nation. There was disagreement as to which one it should be, but the idea of a loyal opposition, of changing from one vision to another with each election was unfathomable and to those in power, opposition to the sitting government seemed to border on treason. Therefore, they sought to protect the nation by suppressing opposing views.

Things were relatively quiet when George Washington was President, but he was succeeded by John Adams and the quiet ended. Federalists policies antagonized the Jeffersonians throughout Adams' term. The Federalists held power until 1800 when the Democratic-Republicans gained control of Congress and Thomas Jefferson was elected president. The shift in power was due in part to a rift between Hamalton and Adams over war with France--Hamilton wanted it, Adams didn't--and in part to public response to the passage of the Alien and Sedition acts in 1797. The purpose of these acts was to provide a way to suppress and punish opponents of the government. This was seen by the Democratic-Republicans as too much power for the national government and they campaigned for a different vision of the role of government

But it was not really that simple. Before the election, Jefferson and Madison responded to the Alien and Sedition acts with the Kentucky and Virginia Resolutions. The Kentucky Resolution submitted by Jefferson was the most radical, proposing the doctrine of nullification which held that as sovereign states, a majority of states could vote to nullify any law passed by Congress with which they disagreed. This doctrine was to become one of the smoldering logs in the fire of Civil War.

When Jefferson took office, he retained many of the policies a structures put in place by the Federalists. The policies were working and he felt that with power in his hands, they could not do the harm he feared from the Federalists. He allowed the Alien and Sedition acts to expire, but like the Federalists, he also sought to suppress and punish his opponents. Jefferson used the weapon of impeachment.

Before leaving office, the Federalist Congress passed the Judicial Act creating hundreds of new federal judges. Adams was up until midnight the last day of his term signing judicial appointments. Jefferson viewed this as an attempt to pack the federal courts with federalists in an attempt maintain control over at least one of the three branches of government and he didn't like it. Jefferson ordered Sec. of State James Madison to ignore the appointments and they went undelivered. The new Congress soon repealed the judicial act and Jefferson thought that was the end of it. Then one of the appointees [?] Marbury asked the Supreme Court to issue a writ of mandamus ordering James Madison to deliver his appointment so he could assume his legally created and appointed office.

To make a long story short, the Supreme Court ruled that it could not issue the writ because the law passed by congress delegating that power to the court was unconstitutional. This established the principle of judicial review which gives the Supreme Court the power to declare laws passed by Congress to be unconstitutional.

Jefferson felt this gave the Court too much power because the Supreme Court was controlled by federalists. He feared they would use this power to nullify Dem-Rep legislation passed by Congress. Jefferson sought to purge the courts by charging federalist judges with high crimes and misdemeanors and impeaching them. In most cases he was unsuccessful, but it shows that Jefferson was just as determined as Adams and Hamilton to suppress opponents to his political vision.

The opposition between federalism and state sovereignty continued and eventually took on sectional lines pitting the largely industrial-mercantile North against the largely agrarian South The early on, the critical issue was not slavery but the protective tariff which the South felt penalized them unfairly as two thirds of the tariffs collected were collected in southern states. One of the early weapons which the South tried to use against national laws favoring the North was nullification, this time championed by John C. Calhoun of South Carolina.

Calhoun's doctrine of nullification did not require a majority of states. It held that because the states were sovereign, they could act on their own and did not have to rely on the Supreme Court to declare a law unconstitutional. Rather, any state had the power to nullify within its borders, any law passed by congress with which it disagreed. Nullification could only be overcome by a Constitutional amendment ratified by 3/4s of the states and if the federal government tried to force compliance without an amendment, the state had the right to secede from the Union.

South Carolina tested this doctrine and lost the battle but won the war when President Andrew Jackson declared the doctrine of nullification to be treasonous and threatened to use all the force necessary to enforce the laws of the United States within South Carolina. Other southern states refused to support South Carolina in the confrontation so South Carolina agreed to a compromise formulated by Henry Clay of Kentucky by which S.C. would withdraw its nullification of the tariffs in exchange for a gradual lowering of the tariff over the next 10 years. Because the tariff was lowered, Calhoun and his followers considered this a victory for state sovereignty and continued working to build a solid South that could eventually successfully oppose federal political and military power.

With the tariff question settled, the critical issue soon became slavery. The abolitionist movement was growing in New England, primarily Massachusetts, and demands for an end to slavery were increasing. Because these demands came primarily from the north, the South felt attacked again. The South feared that a strong federal government controlled by northern interests would seek to destroy the south's economy by abolishing slavery which was critical to the South as a source of labor for raising the cotton on which its economy was based.

Federalism had always been strongest in the north, especially New England, and as more states were added to the Union, the issue of whether slavery would be allowed in these states became critical. This was because of representation in the Senate. The North had a greater population so it was likely that northern states would control the House. But since each state has only two senators, population was not an issue in the senate. As long as there was a balance between slave states and free states in the senate, one section could not ride roughshod over the other. Through a series of compromises, this balance was maintained until 1860.

The election of Abraham Lincoln in 1860 was seen in the South as a clear signal of the intention of the North to prevent the introduction of slavery into the territories and thus end once and for all the balance of power in the Senate that had kept the flames of regional conflict suppressed. The (now solidly aligned) Southern states began exercising their sovereignty and seceded from the Union (South Carolina was first, of course). Abraham Lincoln, while he accepted a principal of limited state sovereignty, did not believe that any state had a right to leave the Union once joined. This was the spark of rebellion that finally set the bonfire ablaze.

The issue driving the events was slavery, but freeing slaves was not the purpose of the Civil War. The purpose was to preserve the Federal Union. There was little doubt that forcing the slave states to remain in the Union meant the eventual end of slavery. Fully 69% of the popular vote for President in the 1860 election was for anti-slavery or free-soil candidates. Most of those votes came from northern and western states. The South was outnumbered in the House and if slavery was prohibited in the territories, either by legislation of popular sovereignty, the balance in the Senate would swing to the anti-slavery forces who would then pressure the South intolerably. For survival, the South had to leave the Union and make its own way.

Lincoln was only moderately anti-slavery. He felt that given time, slavery would come to an end as the South found more efficient ways to drive their agrarian economy. Lincoln was opposed to emancipation of slaves without compensating slaveholders and he felt that emancipation further required a way of colonizing the freed slaves outside of the United States. For Lincoln, the war was always about preserving the Union, but he had to balance this against the fact that his support came from two groups, pro-Unionists that were against abolition, and abolitionists that saw the war primarily as a way to bring about emancipation. It was a delicate balance.

By 1862, there was growing discontent over the course of the war. Lincoln was in danger of losing the support of the abolitionists who were beginning to see that the goal of restoring the Union might be at odds with the goal of abolition. They began to see that war was not necessary to free the slaves in the remaining Union states, but that nothing could be done to free the slaves in the United States without a constitutional amendment. The constitution recognized slavery, and the 5th amendment prevented the taking of private property (slaves) with out due process of law and just compensation. As a result, the abolitionist were evermore ready to say "Good riddance" to the South and free the slaves remaining in the Union. Lincoln was losing his base of support.

Lincoln signed the Emancipation Proclamation in 1862. Many think that this freed the slaves, but it did not, at least, not entirely. The proclamation was primarily a war measure aimed at putting pressure on the Confederacy on one hand and restoring abolitionists support for the war effort on the other. In July, Congress had already passed, and Lincoln had accepted, the Second Confiscation act which declared that all slaves held by those in rebellion were free. However, Lincoln delayed in proclaiming these slaves to be free because he feared upsetting the balance of his support for the war by offending the non-abolitionist in the north. He waited for a success on the battlefield when pro-war sentiment would be strongest. In September, after the battle of Antietam, Lincoln issued a preliminary proclamation of emancipation declaring that a final proclamation of emancipation, under the terms of the Confiscation act, would be forthcoming unless the states then in rebellion surrendered by January 1863.

When finally issued, the Emancipation proclamation only freed the slaves in areas not currently under federal control (and thus was not enforceable until those areas came under federal control) but did nothing to alter the status of slaves in rebellious states or parts of states that were under federal control. Nor did it free the slaves in slave states that had remained part of the Union.

Think about it. Lincoln was fighting a war to preserve the Union. His support was precariously balanced between pro-Unionists that didn't really care about abolition and certainly not about fighting for the rights of blacks, and abolitionists that felt abolition was a holy writ to be imposed on the slave states by whatever means necessary whether they were in the Union or not. The abolitionists cared nothing for preserving the Union without the abolition of slavery. Without the slave states to oppose it, abolition could be accomplished in what remained of the United States with an amendment but the rest of the country was not interested in debating such an amendment in the middle of a war. The Emancipation proclamation gave the abolitionists reason to support the war effort because it created a means of freeing the slaves in the Confederacy by the extension if US military power. It did not require that the war be won or the Union restored, just that Union armies move through Confederate territory, freeing the slaves as they go. In addition, once the war had ended, attention could be turned to and amendment to abolish slavery. Pursuit of the war now served the purposes of both abolitionists and pro-Unionists and Lincoln had the base of support he needed to pursue the war for his purpose, which was to preserve the Union.

The 13th Amendment was proposed by a Congress controlled by abolitionists and ratified by states that were predominantly free. It was not done until after the war ended and the states of the defeated Confederacy had not yet been readmitted to the Union. It is doubtful that such an amendment would have been ratified if the slave states had been immediately restored to statehood and included in the count. War was not necessary to end slavery in the United States, but a constitutional amendment certainly was and it was secession that made such an amendment possible. War was necessary to preserve the Union but if slavery was to be outlawed, it had to be done before it was put back together. And that is what happened. The Confederacy was defeated, slavery was outlawed, and the defeated states were "reconstructed" and "allowed" to rejoin a Union that now outlawed slavery.

One thing the Emancipation proclamation eventually did for many in the North was change their view of the purpose of the war. By 1864, slavery seemed to be the cause for which the South was fighting and if the South wasn't fighting, there would not be so much suffering and death. By this time, the North was not fighting to preserve the Union so much as to end the war and now ending the war also meant ending slavery which would remove the South's reason for fighting.

What the proclamation did not do was change the purpose of the war for the South. The war was to defend state sovereignty and southern independence. Slavery was not the primary issue, it was just something that North was trying to take way in order to extend their economic dominance over the southern states and make them dependent upon northern merchants. Remember, it was only the secession of the slave states that made the ratification of the 13th amendment possible. If the South had remained in the Union, slavery would have continued for some time but the South would have been under increasing economic and political pressure from the rest of the country. The South had come to believe that the common interests that originally bound the states together had been subsumed by overriding regional concerns and union was no longer desirable. In effect, they wanted a divorce.

But at the root of all was the old conflict between federal sovereignty and state sovereignty. And in the end, the federalists won. That states could not secede was enforced by force of arms. Federal citizenship was pronounced and trumped state sovereignty. The 14th Amendment extended the protections of the federal Bill of Rights to US citizens and state constitutions and state law had to conform. The United States became a federal republic with a strong central government, as Hamilton and Adams had envisioned, and not a loose association of sovereign states with a weak central government acting as its agent which Jefferson had desired.

When studying the history of the Constitution, it is important to know the original intent of the founding fathers because where it has not been modified, that original intent still holds true. But one of the original intents was that government be responsive to the changing needs of the country, in many cases, original intent has been modified to meet the needs of changing times. Where original intent has been preserved, that original intent is valid, but where it has changed--through force of arms, amendment, or judicial interpretation--that change is equally valid. It does little good to pretend otherwise. Just like it does little good to pretend the Civil War was just about slavery.