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The Civil War often is seen as a turning point in the history of American federalism. In one sense the truth of this perception is beyond dispute.
Had the South secured secession by force of arms, the Union would have been broken, the federal system disrupted. There is no telling what the consequences for attitudes toward federalism the world over would have been or what sort of federal system would have survived, North or South.
But scholars—especially constitutional scholars—see the Civil War as a turning point in a narrower doctrinal sense. They perceive the doctrine of state sovereignty, by which southerners justified secession, to have embodied a profound challenge to the federal system created by the Founders.
Yet constitutional historians have not attended very well to antebellum theories of federalism. There has been a tendency to overidentify with antebellum constitutional nationalism as the "correct" understanding of federalism endorsed by the Supreme Court and to view state sovereignty as a kind of heresy.
As we conclude the bicentennial year of the framing of the American Constitution, it seems particularly appropriate to clarify the antebellum theories of federalism, to discuss the degree to which constitutional nationalism was triumphant in the Civil War, and to describe how Lincoln personified it.
Would there be a legal environment in the United States conducive to modern economic institutions, especially banks and business corporations? How fixed, stable, and reliable would contracts be? Would the power of government be harnessed to promote economic development through subsidies, tariff protection, and the establishment of government banks?
Would Indian tribes retain control of lands desired by white Americans for commercial development? Should government take steps to discourage the continued existence of slavery?
The resolution of all these controversies would be different if people agreed that the Constitution required them to be decided in the state rather than the national arena. In the course of these antebellum controversies over government policy, Americans developed three different understandings of federalism, articulated in court opinions, legal arguments, legislative debates and resolutions, in party platforms, public addresses, newspaper editorials, journal articles, and all the other media through which public opinion was formed.
The doctrine of state sovereignty was developed over time by such lawyers, politicians, and political philosophers as Virginia Congressman John Randolph, jurisprudents St. Calhoun, elaborating upon principles originally articulated by Jefferson and Madison in the Kentucky and Virginia Resolutions.
Douglas, and the Jacksonian Democratic party especially its northern wing, although many southerners adhered to it too. As independent sovereignties they agreed first to the Articles of Confederation and then to the Constitution, which was thus a compact that created a confederacy, not a nation.
There could be no conflict over jurisdiction between the central government and an individual state government. The compact provided no forum to adjudicate such conflicts, since the Supreme Court, as part of the subordinate government, could not bind the sovereign states.
State courts could ignore federal court decisions that transcended the jurisdiction of the federal government. Byadherents of state sovereignty insisted that each state retained final authority to decide such conflicts by nullifying the operation of federal laws within its own boundaries.
Finally, if the other parties to the compact sought to enforce a federal law or court decision over the opposition of the state, the compact would be broken and the state could exercise its sovereign authority to withdraw from the confederacy.
States could exercise the same right if the central government failed to fulfill its obligation to promote the interests of all states equally. Since the states retained final sovereignty, the only cement that bound them together was the mutual regard, respect, and affection of their peoples.
This imposed a special obligation on the people of each state to regard the feelings and property rights of the people of sister states with solicitude.
If they failed, this too might be justification for withdrawing from the Union. In general, state-sovereignty theorists stressed the limitations on federal power.
Like adherents of state rights, they argued that there was a line separating the jurisdiction of the state governments and the central government. Final authority over internal matters remained with the states.
Therefore, it was essential that the delegation be strictly construed. The delegation of all powers "necessary and proper" to carry out the powers granted to Congress in Article I, section 8 of the Constitution posed a particular danger to state authority.
As Jefferson had warned, if the words received a latitudinarian construction, they "would swallow up all the delegated powers Under the latitudinarian reading of the "necessary and proper" clause, "the powers of the federal government would be enlarged so much Hayne, who defended nullification.The interpretation of the terms of a covenant—i.e., whether it bars a use of property that is unlawful as a matter of state, federal, local, international, or Bolivian law, is a state law issue.
It doesn’t become a federal question just because the covenant refers to federal law. THE SPIKE. It was late-afternoon.
Forty-nine of us, forty-eight men and one woman, lay on the green waiting for the spike to open. We were too tired to talk much.
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