Early Debates
The idea of states’ rights dates back to Thomas Jefferson, who himself drew on the “social contract” theories of the British philosophers Thomas Hobbes (1588–1679) and John Locke (1632–1704). Jefferson maintained that the United States was formed through a social contract between the individual states rather than the people as a whole. In other words, because these states had united voluntarily to form a union—in Jefferson’s language, a “compact”—the U.S. government derived its power only from them. This understanding of American government soon found expression in the U.S. Constitution. In 1791, the Ninth and Tenth amendments were ratified, reserving all powers not expressly granted to the federal government to the states and/or the people.
The nature of these rights and powers was hotly disputed just a few years later. In 1798, the Federalist-controlled U.S. Congress passed and the Federalist U.S. president John Adams signed the Alien and Sedition Acts. The Federalist Party favored a strong national government, and, according to the Alien and Sedition Acts, that government was now authorized to place restrictions on immigration and penalize certain kinds of speech, in particular the kind of speech coming from newspapers supporting the opposition Democratic-Republican Party. Some editors were even jailed.
In response, Jefferson, then Adams’s vice president, secretly participated in drafting the Virginia and Kentucky Resolutions, passed by Virginia in 1798 and Kentucky in 1799. The separate resolutions provided an early articulation of a state’s right to nullify—or declare null and void—a federal law it deemed to be contrary to its own rights and interests. While the New England states officially rejected the resolutions, they were nevertheless seduced by the principles.
The Hartford Convention and the Nullification Crisis
The issue came up again during the War of 1812. A few New England Federalists who opposed the war and the administration of U.S. president James Madison, a Democratic-Republican, broke with their party and embraced states’ rights. Delegations from Massachusetts, Connecticut, and Rhode Island met in Hartford, Connecticut, from December 1814 until January 1815 to air their complaints and even to discuss secession. Although historians disagree about how serious any of the Hartford Convention’s twenty-six delegates were about secession, the public took a dim view of such talk either way. Ultimately, the United States concluded its war against Great Britain, and the Federalists met resounding defeat at the polls in 1816. The party eventually collapsed.
The Nullification Crisis was the last outbreak of states’ rights fever before the sectional crises of the 1850s. The Tariff of 1828 placed a tax on European imports in order to protect New England industry, a policy that hurt some southern businessmen. When, after taking office, U.S. president Andrew Jackson did nothing to mollify tariff opponents, the South Carolina legislature took matters into its own hands and declared the tax null and void within the state.
Jackson was even challenged within his own administration. His independent-minded vice president, John C. Calhoun of South Carolina, used the crisis to articulate a constitutional framework for states’ rights, forming the Nullifier Party to represent his ideas. (Not surprisingly, he resigned his office in 1832.) Jackson responded in force, asserting the power of the federal government by dispatching warships to Charleston Harbor, South Carolina. Only the Compromise Tariff of 1833, proposed by U.S. senator Henry Clay of Kentucky, managed to relieve tensions. The Whig Party was founded that same year in opposition to Jackson.
Slavery and Secession
The sectional crises of the 1850s came in the wake of the Mexican War (1846–1848). The United States had won from Mexico about 500,000 square miles of land—in addition to Texas, the current states of California, Nevada, and Utah, and parts of Colorado, Arizona, New Mexico, and Wyoming—and now hoped to absorb it into the Union without upsetting the delicate balance of power between slave and free states. At issue was whether and how slavery would spread to these new territories. After years of angry negotiations, the Whig and Democratic parties agreed on the Compromise of 1850. The deal admitted California into the Union as a free state, abolished the slave trade in Washington, D.C., passed a new Fugitive Slave Act, and made provisions for “popular sovereignty”—wherein the people of the remaining territories would decide for themselves the issue of slavery.
Crisis was averted, but not for long. Two actions of the federal government enflamed the sectional crisis even further, angering abolitionists and sparking defensive reactions in the South. The Fugitive Slave Act required free states to cooperate in the capture of escaped enslaved people within their borders. And in Dred Scott v. Sandford (1857), the United States Supreme Court ruled, in part, that slavery could not be restricted in the territories. These actions represented the work of a strong federal government but, ironically, were hailed by Southerners, who abandoned their commitment to states’ rights when it served their interests as enslavers. Slavery, ultimately, was more important than states’ rights. In the meantime, the sectional crisis contributed to a gradual political realignment.
The Second Party System (1837–1852), a period in which political allegiances were fairly evenly divided between the Whig and Democratic parties, was coming to an end. Instead of identifying with their party, Americans were beginning to identify more strongly with their section. They were either Northerners or Southerners. (The Whig Party dissolved as a result, not long after its candidate, Virginian Winfield Scott, was thumped in the presidential election of 1852.) Indeed, the sections, at least on the surface, had developed distinctive economies and cultures. Historians disagree on the degree to which these differences were real, but certainly many Northern cities had been transformed by the Industrial Revolution into manufacturing centers. The Southern economy, meanwhile, had become increasingly tied to slavery and its expansion.
Southern leaders, and especially “fire-eating” Democrats of the Deep South, worried about protecting slavery. If the federal government was seen to side against them, their response was at the ready: states’ rights. Still, states’ rights was only a means to an end. Slavery was always most important, a fact illustrated by the debate over popular sovereignty. The right of people in a state or territory to determine for themselves whether to allow slavery was most famously championed by U.S. senator Stephen A. Douglas of Illinois as part of the Kansas-Nebraska Act (1854). Because it took power away from the federal government and gave it to the people, popular sovereignty seemed to jibe with the principles of states’ rights, yet the fire-eaters still opposed it. They were unwilling to risk the possibility that popular sovereignty would limit the spread of slavery, preferring instead to rely on the power of the federal government.
Everything changed in 1860, however. In the North, the antislavery Republican Party had stepped confidently into the void left by the Whig Party, and when its candidate, Abraham Lincoln of Illinois, was elected U.S. president on a platform of limiting the spread of slavery, the South rebelled. With the “peculiar institution” considered to be under attack from the federal government, states’ rights became a cornerstone of Southern nationalism. Eleven slave states, citing the works of Jefferson, Madison, and Calhoun, seceded from the Union in the winter and spring of 1860–1861 and formed the Confederate States of America.
The Civil War and After
At the start of the Civil War, states’ rights was initially a unifying principle around which Southerners rallied to the Confederate cause, but the demands of war forced government and political officials to abandon their high ideals. In their defense of states’ rights against the “misguided frenzy and folly and madness” of the U.S. government (to quote the Virginia newspaper editor John M. McCue), Confederates tried to convince Southerners of all classes that they were a unique people who possessed a purity, honor, and chivalry that could not be found above the Mason-Dixon Line. States’ rights became not just a political argument, but a personal one, too. Confederate propagandists turned any perceived attack on the rights of states into an attack on a whole people and their way of life. On May 3, 1861, the Staunton Vindicator spoke for many in Virginia and the South when it argued, “We are repelling aggression. We are defending our firesides and homes.”
Slavery, although largely understood to be a cause of the war, was not a compelling rallying cry because it divided whites along class lines. It was, however, useful as a metaphor for the plight of Southerners, who were imagined to be the helpless victims of a federal government now under the control of antislavery Republicans. The Staunton Spectator complained of Republican “tyrants who would enslave them,” described Northerners as slaves under such a regime, and complained that the Lincoln administration, in assuming power “under the pretence [of] regard for the negro, had riveted the chains of slavery upon millions of white men.” Of course, the South had once depended upon a strong federal government to protect the rights of enslavers; now, in defense of slavery, it attacked that government as an affront to its most basic collective and individual rights.
While states’ rights may have been an important symbol of the Confederate cause, the philosophy—always malleable in the hands of Southerners—did not prevent Jefferson Davis from creating a strong federal government, which he considered crucial in fighting the war. He persuaded the Confederate Congress to pass legislation allowing for the conscription of men into the army, the confiscation of private property (otherwise known as impressment), the declaration of martial law, and the restriction of habeas corpus rights.
The Lincoln administration also pushed hard against the traditional boundaries of federal authority, but it was more difficult for Davis. At times, he was hamstrung by a political culture founded on states’ rights and the hedging of federal power. Davis’s own vice president, Alexander Stephens of Georgia, declared many of the Confederate government’s actions dangerous and unconstitutional. Joseph E. Brown of Georgia was one of several governors who vigorously objected to conscription. Instead of honoring the national draft—the first in American history—he declared one of his own for the state militia. And many Confederate citizens turned against the government, whose power they came to resent. Angry mobs freed draft evaders from jails, and committees were formed to protest impressment. Perhaps the more important point, though, is that Davis was able to consolidate so much power in his government so easily.
An attachment to the ideals of states’ rights helped ignite the Civil War, but that same attachment could not also survive the war. The United States that emerged following the Confederate surrender at Appomattox was one that firmly rejected the notion of a voluntary compact between the states, and its federal government was considerably stronger as a result. Still, the myth of the Lost Cause—an interpretation of the Civil War dating back to the postwar writings of Confederate veterans such as Jubal A. Early—has insisted on the legitimacy of states’ rights and secession. That the Lost Cause has persisted for so long and has been largely accepted by popular culture suggests that the victory against states’ rights was hardly complete.
