Sectionalism Returns

Recently Michael S. Greve of George Mason University Law School wrote an insightful article which contends that sectionalism has reared its head again. This new sectionalism is dividing the states along the lines of economic interests, which also happen to be aligning nicely with current ideological and partisan fault lines as well. Professor Greve rightly points out that the states are in a war to see who can impose the most and the highest “rival costs” upon their sister states.  Greve views this new emergence of sectionalism as hopeful, the only way perhaps that one can limit the power of the central government in a federal republic.  He is further encouraged that the new sectionalism is not about “race” anymore, though I have a few cousins-in-law in blue states who might disagree.  Nevertheless, Greve’s article chronicles well how the limitation on the SALT deduction has brought the issue of sectionalism once more to the fore.

My modest addition to Mr. Greve’s piece is to offer a bit of historical context to the historical phenomena known as sectionalism.   As tempting as it is to trace the roots of sectionalism back to their colonial beginnings, I will limit myself to the current political order outlined by the Constitution and altered by the outcome of the War Between the States.  My contention is that the political order set up by the framers of the Constitution and as understood by the state ratifying conventions, created an arena of conflict whereby states and blocs of states sought to use the federal government as bludgeon to impose costs upon their rivals and to direct federal benefits to themselves.

As Mel Bradford has made clear in his magisterial Original Intentions, the states in the ratifying conventions interpreted the Constitution in ways unique from each other.  Of course, there are those who might pooh pooh the state conventions, but let us remember it was no less than the alleged “Father of the Constitution,” James Madison, who said that the meaning of the Constitution must be sought for in the state ratifying conventions. If we accept Bradford’s view that the different states were each interpreting the Constitution in a unique way, then Madison’s assertion doesn’t seem helpful.  In fact, it seems to be clouding the waters, something Madison was good at.  But these are waters that are cloudy.  The champions of Publius, hoping to clear these waters, might offer to us the Federalist Papers as a definitive and unified interpretive key to the Constitution.  Lest we forget, the Federalist Papers, and all of the assorted anti federalist writings were written for primarily local contests, Publius using the three-headed pen of Alexander Hamilton, John Jay, and James Madison hoped to sway the crucial ratifying convention in New York state in favor of the Constitution, which is to say that the debates possessed a state and local character, as well as a national character.

Indeed, one of the key disagreements between the federalists and the anti-federalists was over how great a threat the new federal government would be to the autonomy of the states and local communities of the United States.  This was also a debate at the Philadelphia Convention.  The Virginia Plan was opposed by many states with smaller populations who believed their interests would be damaged in the new government.  Underneath the rhetoric of the anti-federalists concerning the “people” and “rights” was the local context.  The “people” meant both the citizens at large and the citizens of my state and community, the same for rights.  The great fear driving the anti-federalists was not just that of a federal government on steroids, but a federal government on steroids captured by some interest or combination of interests using the power of that federal government to enrich themselves and raise everyone else’s costs.

During the Philadelphia Convention itself a number of thorny issues and compromises demonstrated the legitimacy of anti-federalist concerns.  Contra the silly things believed today, the three-fifths compromise had very little to do with a debate over the humanity of African-American slaves and a good deal to do with money and power.  States with few or no slaves were more than happy to insist that slaves were property, and thus were to be counted fully for taxation, but not for representation.  Conversely, states with robust slave populations wanted the opposite.  This was imposing costs upon your rival behavior at its best.  The three-fifths compromise was agreed to because it was alleged that an African American slave’s labor was only valued at three-fifths of a free white man.  Where that number came from is anyone’s guess, but states in the North complained bitterly ever after about the compromise giving Southern states over representation in the House of Representatives all the way to the eve of the War Between the States.  They were especially loud in their complaints when they weren’t getting what they wanted. Slavery did not always divide states along a north/south divide.  The continuation of the slave trade was a plan hatched by New England shippers and low country planters from Georgia and South Carolina.  Everyone else wanted it outlawed, but it was allowed for another twenty years.

The simple reality is that independence from Great Britain did not wash away long standing sectional sectional interests and jealousies, many of which were left over and encouraged by the old imperial arrangements under Great Britain.  Southerners resented Northerners who were willing to give up the free navigation of the Mississippi River and the right of deposit at New Orleans for a commercial treaty with Spain.   Pennsylvanians and folks from Massachusetts also hoped to secure majorities in the new Congress by discouraging Southern settlement of the Mississippi Valley.  Pennsylvanians wanted their iron industry protected by the new federal government and New England was hoping for a replacement of their old imperial fishing bounties, and the South wanted some protections for slavery.  When the first Congress met, James Madison introduced a bill in the House of Representatives for a small five percent tariff to fund the operations of the new government.  Immediately the Pennsylvania delegation demanded a higher protective tariff for the protection of their industries in direct competition with the British.   Funding and assumption was another source of sectional conflict.  States such as North Carolina who paid off their Revolutionary War debt were outraged that the federal government proposed to assume all state debts from the revolution and fund their payment with federal taxes.  Massachusetts, who had a high war debt, was overjoyed upon hearing of Hamilton’s proposal.  When it seemed the proposal would meet with defeat in the House, John Taylor of Caroline was approached by representatives from New England who wished to begin negotiations over a peaceful breakup of the new Union.

Imposing costs upon one’s rivals intensified in the 1800s with taxation and representation at the core of the conflict.  During the Missouri Crisis, old jealousies of Virginian dominance of the executive branch and old fears of Southern dominance of the Congress became heightened when Missouri sought to be admitted to the Union as a slave state.  This prompted a long fight on the part of northern states to restrict southern movement into the territories by excluding slavery from those territories.  Historians in recent decades have examined this conflict as a primarily a moral one, or a conflict between Southern and Northern social orders.  I suggest that another dimension to this was an attempt by the Northern bloc to exclude at least the movement of Southern small slave holders, from the western territories to gain a marginal advantage in the fight for control of the new states.  With rise of the Republican Party in the 1850s, a powerful sectional party representing and pursuing sectional interests, the political stakes were enormous.  Since large planters not making a bee line for Missouri, Kansas, Nebraska, California, or Utah, the exclusion of small slave holders from those territories on the verge of becoming states afforded a powerful advantage to northern sectional interests. Of course, what was at stake was control of the Presidency, the Congress, and eventual control of the judiciary—which meant control of the legislative agenda and the advancement of sectional interests.  By the late 1850s, the Republican Party was well on its way to achieving these goals.

The tariff wars of the antebellum were also classic examples of imposing costs upon one’s rivals.  As one Northern book at the time had it, Southern wealth was being transferred via tariffs to create Northern profits.  As much as the heated debates over slavery deeply influenced the temper of the time, the reality is that secession by the lower South was prompted by the victory of the Republicans in the presidential and house elections of 1860, the first time a purely sectional party was able to pull it off.  The first seceding states saw the imposition of more burdens and costs in the future, so that even a promised amendment to the Constitution protecting slavery in perpetuity was not enough to entice them back.  When President Abraham Lincoln called up the militia and militarily occupied the border state of Maryland, the fears of the lower South now seem justified, so the upper South left the Union too.

The victory of the federals in the War Between the States created a new and more consolidated central political authority, and it enhanced the powers of the executive branch.  This trend would gather steam down to our present day.  The sectional conflict became muted.  Eventually the South became the solid South lining up with the Democratic Party in most national elections, and in nearly all local and statewide elections after Reconstruction until more recent times.  Indeed, parts of the South did not go fully “red” until the early 1990s, Maryland never did, and now both Virginia and North Carolina are on the edge of turning “blue.”  While it is tempting to view Jim Crow and segregation as a sectional fault line, this is somewhat misleading.  The South codified what the North had once codified and continued to informally practice well into the twentieth century.  People of short memory forget that the most violent riots and confrontations during the Civil Rights era occurred in Northern urban areas.  What is puzzling is that the NAACP never used the decision in Plessy v. Ferguson to force Southern states to equalize the funding and quality of segregated public facilities.  This would have imposed an enormous cost on Southern states, and most likely Jim Crow would have proven too expensive to maintain.  While Southern states did use the mantra of states’ rights to shield Jim Crow, the reality was Jim Crow imposed enormous economic and social costs on the South—a bit like shooting oneself in the foot.

So where does that leave sectionalism today? We have a funny political situation where the two parties are not that far apart ideologically, but the partisanship between them is vast and deep.  Some of this is structural.  Our system of single member districts in the House, with winner take all elections for the House, Senate, and Presidency encourages high stakes politics and the perpetuation of a two-party system now grown dysfunctional.  Gerrymandering is an art form in the United States with North Carolina and Maryland in the forefront.  The practice of gerrymandering creates districts that are deeply partisan and none too fond of compromising tendencies in their representatives.   Also, both sides of the aisle are dug in and doubling down on those parts of the status quo that benefit them.  And we now have an enormously powerful executive branch capable of both distributing patronage on a scale that would have made even Robert Walpole blush, and punishing its enemies via the control of the now politicized and weaponized intelligence apparatus of the federal government.  Professor Greve is wise to be worried about the corrupting influence of the executive branch, and here I do not mean an individual, but the institution.  My fear is that the new sectionalism may not prevail against the continued aggrandizement of executive and federal power and influence.  I do hope I am wrong.

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