Editor’s Note: This chapter is republished from The South in the Building of the Nation series (1909).

In the making of the American Nation, the Southern states have played a conspicuous part-a part which has not received proper recognition at the hands of historians at home or abroad. This neglect of the South is largely the result of the views which the South has held with reference to the constitution of the United States, views which in general have not coincided with the constitutional theories and doctrines of Northern writers and jurists. The interpretation of the constitution has been the chief feature of national politics, and on this subject there has never been unanimity of opinion throughout the country at large; therefore no statement of the South’s part in the “interpretation of the constitution” will be entirely satisfactory to all parties or to all students of constitutional history and law. Moreover, prejudice has entered into the discussion of the question, due to the fact that over certain constitutional principles was fought the great War of Secession, producing bitterness and feeling, so that one can scarcely enter upon a discussion of this subject without preconceived notions and ideas. In this paper an effort is made to look at the question from an historical standpoint without reference to consistency either on the part of the North or the South, and to trace the evolution of constitutional interpretation.

The Southern View of the Nature of the Constitution.

As an introduction to the subject, let us examine the Southern view of the nature of the constitution. To Southerners, the Union was a compact, entered into by separate and distinct political bodies. Such was the Union of the states under the Articles of Confederation, and such the South believed was the Union under the present constitution. According to this compact theory, the government of the United States was created by the states and all the powers of the Federal government are held in trust for the states themselves. Sovereignty, therefore, does not belong to the government of the United States or to any state government, but to the people who made the government of the United States and the states, that is, to the people of the several states taken individually and not to the people of the United States as one mass. These are the views expressed by Alexander H. Stephens, and, in general, were the views held at the time of the adoption of the constitution of the United States. Such were the views of Mr. Madison and Mr. Jefferson, and even of Mr. Hamilton himself, with reference to the question of sovereignty, though Mr. Hamilton differed from Mr. Madison and Mr. Jefferson as to the limitations placed upon the Federal government.

In the constitutional convention of 1787, there had been an element opposed to any recognition of state sovereignty, but when a proposition was brought forward to establish a strong national central government with power “to negative all laws passed by the several states contravening, in the opinion of the national legislature, the Articles of Union or any treaties subsisting under the authority of the Union,” it was defeated by a vote of seven states to three; whereupon, the extreme, “states rights” element of the convention, headed by Luther Martin, of Maryland, passed a resolution which was embodied in the constitution as the second section of Article VI., expressly restricting the United States government to its delegated powers. It seems that all the members of the convention understood that the constitution which went into effect in 1789 was only for a more perfect Union, to give to the Federal government more delegated powers, better organization and better machinery, but not to interfere with state sovereignty; in other words, to remedy the defects of the Articles of Confederation. This statement, however, has been denied by many Northern jurists, among them Judge Story, who said that such an idea certainly never entered the minds “of the enlightened band of patriots who framed the Declaration of Independence.” John Marshall himself, though a loose constructionist, acknowledged that the states were separate and independent before the formation of the Articles of Confederation and that this principle was certainly recognized by the Articles of Confederation. The Southern view has always been that the constitution of the United States did not interfere with the sovereignty of the states, but only gave Congress certain specific powers which it did not already have under the Articles of Confederation. Under this construction, the constitution established a Union which did not differ from the old Union, though many Northern jurists have held that when the convention of 1787 was in session, by a sort of mutual agreement, the powers of the states were not only limited but sovereignty was taken from the hands of the people of the states separately and placed in the hands of the people of the United States as a whole. As a matter of fact, it was Mr. Hamilton who led the fight in the convention for such a national government, but was defeated by the Southern representatives under the leadership of Madison, Randolph and Luther Martin. The composition of the Senate of the United States indicates the independence of these states, and Chief Justice Marshall declared that if all the states, or the majority of them, refused to elect senators, the legislative powers of the Union would be suspended.

Still it must be recognized that when the constitution was submitted to the people of the states for ratification, the question was whether the constitution did not by a consolidation of the separate sovereignties of the states make more than a Federal Union. Patrick Henry pointed out in the Virginia convention that such an interpretation was possible, and that on these grounds the constitution should be rejected. John Taylor, of Caroline, was defeated by his two uncles, James Taylor and Edmund Pendleton, as a member of the Virginia convention because he said such an interpretation might be possible, and therefore that the constitution ought to be rejected.

An examination of the ratifications of the constitution by the several states shows the interpretation that was placed upon the constitution when first adopted. Pennsylvania, Delaware, New Jersey and Georgia, the first four states to ratify, held to the old Federal idea, while the fifth state to ratify, Connecticut, said that the sovereignty of the states was not at all interfered with, for “the constitution does not attempt to coerce sovereign bodies, states, in their political capacity.” Massachusetts had some misgivings about the matter, and its convention drew up a series of nine resolutions guarding the rights of the states. The first resolution stated: “That all powers not expressly delegated by the aforesaid constitution are reserved to the several states to be by them exercised.” Under the interpretation that the sovereignty of the states was properly guarded, Massachusetts ratified the constitution by a narrow margin of nineteen majority. Maryland approved the constitution on the assumption that it created a Federal government, while South Carolina ratified with a series of resolutions guarding the rights reserved to the several states. The ninth state, New Hampshire, ratified with resolutions not unlike those of Massachusetts. The tenth state, Virginia, after a long discussion in which Mr. Madison informed the convention that the states’ rights were properly guarded and Mr. Henry that they were not, adopted the constitution by a small majority. Virginia expressly stated that “the powers granted under the constitution being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will.” Even such a man as Mr. Marshall thought that Virginia’s terms of ratification became a part of the compact, and, therefore, the constitution could not be binding, but with the conditions stated in Virginia’s ratification. The eleventh state, New York, fought over the same problem with Mr. Hamilton explaining that the constitution made a Federal government, while the twelfth state, North Carolina, which did not ratify till November 21, 1789, held the same views. Fifteen months after Washington’s inauguration, Rhode Island joined the Union, ratifying in a series of articles, one of which specifically said that “the powers of government may be resumed by the people whensoever it shall become necessary to their happiness.” Thus it is seen that the interpretation placed upon the constitution at the time of its adoption by the conventions of the respective states was that in its nature a Federal government was formed, one in which the sovereignty of the states was not interfered with. But the fact that this view was not expressly stated in the constitution was a source of annoyance to many and caused opposition on the part of the conservative leaders. By some it was said that the constitution was an experiment and that the states could withdraw at will, while others did not agree to this proposition. On account of the uncertainty of this interpretation, Virginia and Rhode Island made definite reservations as to their rights of resuming the powers which were granted to the United States government. All things considered, it seems that history will fully sustain the statement that at the time that Washington was inaugurated, the country at large believed in state sovereignty and a Federal government, though the constitution did not express this view in specific terms.

The National Bank Issue a Phase of the Question of Interpretation.

With the inauguration of Washington on April 30, 1789, the work of the new government began in earnest. The question of the powers of Congress came up in the first apportionment bill when Mr. Hamilton and his friends favored applying the ratio of representation to the population of all the states as one mass instead of applying it to the population of each state separately. Mr. Jefferson insisted that this principle was unconstitutional and the measure was vetoed by Washington. Since that time, the apportionment by Congress has been made to the states separately. In this administration was added to the constitution the Eleventh Amendment, prohibiting the judiciary of the United States from giving cognizance to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign states. Congress deemed this action necessary, for the suing of a state by an individual was a blow at its sovereignty. It is interesting to note that the Southern view-that the judiciary should thus be restricted so that state sovereignty might not be questioned-was held with unanimity, for the new amendment passed the Senate with only two dissenting votes and the House of Representative with only one.

On the national bank question, however, the loose constructionists prevailed and Hamilton’s measure was passed by Congress and approved by Washington, though Jefferson opposed it as exceeding the powers granted to Congress. The national bank issue really was the basis of division of the country into political parties; the loose constructionists, or Federalists, following Hamilton’s lead, favored extensive congressional powers, and the strict constructionists, Republicans or Democrats, following Jefferson, favored the limitation of Federal jurisdiction to those powers specifically granted to Congress in the constitution. To the former party belonged New England solidly, while to the latter party belonged the solid South; the Middle states were debatable ground. With the New England view a few Southerners at this time were in sympathy, notably Marshall.

With the election of Jefferson as President, the Democratic party came into power and held the reins until the election of William Henry Harrison. Its leaders were Southerners, chiefly strict constructionists, but at times the loose construction element of the North, reinforced by certain loose constructionists of the South, succeeded in passing through Congress bills whose import was to interpret the constitution broadly. This gave rise to opposition, and in nearly every case John Marshall, dominating the Supreme Court, rendered a decision favorable to broad and general powers for the Federal government. The charter of the national bank established at Hamilton’s suggestion expired in 1811, and the Democratic party, believing in strict construction, refused to renew the charter. Five years later, the bank was re-chartered under the influence of Mr. Madison, who, though he had previously vetoed a bank measure, approved a second bill, because of the demand for a uniform national currency, reestablishing the national bank for twenty years. Mr. Calhoun, afterward to be the leader of strict construction, was on this measure in accord with Clay and Webster, but the Southern vote was greatly divided, most of the Southern leaders opposing the bank measure. Those who opposed the measure pronounced it unconstitutional. However, the National Bank act was upheld by the Supreme Court under Marshall in the case of McCulloch vs. Maryland.

Though the charter of the bank was not to expire until 1836, Andrew Jackson as soon as he became President began his fight to destroy it, declaring that in spite of the decision of John Marshall, in the case of McCulloch vs. Maryland, the national bank was unconstitutional. In a message to Congress in 1829, seven years before the charter was to expire, he said: “Both the constitutionality and expediency of the law creating this bank are well questioned by a large portion of our fellow citizens.” This bank matter also involved the question of whether all banks should not be established by state authority. A number of the Southern Democrats believed in the national bank, though at this time the vast majority of them were opposed to it, and as a result of this question those Southerners who favored the bank joined the Whig party. The country at large favored the bank, three-fourths of the state legislatures declaring for it, and a measure to re-charter the bank passed Congress. It was promptly vetoed by Jackson. Benton lead the majority of the Southerners in opposition to the bank measure, while McDuffie and Clay lead the minority of the South that favored its re-charter.

Jackson’s veto and his determined action in removing the deposits from the national bank prevailed because of Southern support. It made the Whig party, however, which elected William Henry Harrison and John Tyler. Unfortunately for the Whigs, Harrison died almost immediately after his inauguration, and President Tyler, a strict constructionist, vetoed the Whig measure to reestablish the national bank, on the grounds of its unconstitutionality and interference with states rights. Thus on the bank question strict construction views finally prevailed until secession had been accomplished; then, in 1863, a large Republican majority established the present national banking system. Two years later, a tax of 10 per cent. was placed upon the currency of state banks, thus prohibiting them from issuing bank notes. Many Southerners have held that the tax on state banks is unconstitutional, and at times Southern Democrats have advocated the repeal of the tax on state banks in order that our currency might become more elastic. Whenever there is a stringency in the money market, the old question is revived. Though by strict construction of the constitution the tax on state banks is unconstitutional from a Southern standpoint, it nevertheless has destroyed the wild-cat banking system, such as existed in the period between 1830 and 1860 when state banks issued their currency without any basis of security.

Southern View of the Constitution as Seen in the Virginia and Kentucky Resolutions.

When John Adams became President in 1797, the Federalist party of Hamiltonian views prevailed over Jeffersonian ideas. Unfortunately, the Federalists pushed their power too far and passed the Sedition act which declared that it was a crime for any one to write, print, utter, or publish any false, scandalous and malicious writing against either house of Congress or the President. The Jeffersonians regarded this as unconstitutional, violating the first amendment to the constitution, which declared that Congress shall make no law abridging the freedom of speech. In addition to this act, Congress

passed the Alien act allowing the President at his pleasure to order any foreigner whom he might deem as dangerous to depart from the country under heavy penalty for refusing to obey the order. The Republican party regarded these acts as transcending the powers granted to Congress. Jefferson and Madison interpreted these acts as unconstitutional, and Mr. Jefferson drew up some resolutions, one copy of which was sent to the Kentucky legislature and the other copy to Mr. Madison, who modified it and sent it to the Virginia legislature. These resolutions are known in history as the Kentucky and Virginia Resolutions. In substance, they declared that the Alien and Sedition acts were unconstitutional, and that power lay within the states themselves which made the Federal government to judge when the constitution had been violated. These resolutions were the foundation stone of the Democratic party. Upon them Mr. Jefferson was elected President in 1800 and again reelected in 1804. In fact, no President from Jefferson to Lincoln had denied the principles of the Kentucky and Virginia Resolutions. In the Kentucky Resolutions the statement was made that “the states composing the United States are not united on the principle of unlimited submission to the general government,” and that the construction placed by Congress upon its duties was too broad, and that to submit without protest would be to surrender the cardinal principle of our Federal government. These resolutions were transmitted to the other states of the Union, and many of the state legislatures passed resolutions of approval or disapproval. The New England states were pronounced in their disapproval. The following year Mr. Madison became a member of the Virginia Assembly in order that he might answer the resolutions of disapproval. The Assembly adopted

his reply reasserting the compact theory of government. Kentucky also adopted similar resolutions, declaring that “the principle and construction contended for by sundry of the state legislatures that the general government is the exclusive judge of the extent of the powers delegated to it stop nothing short of despotism, since the discretion of those who administer the government and not the constitution would be the measure of their powers; that the several states who formed that instrument being sovereign and independent had the unquestionable right to judge of the infraction, and that nullification by those sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy.” Thus we find the basis of the nullification doctrine proclaimed as early as 1798-99. Where these views would have carried the country, we are not able to say, for the election of Jefferson in 1800 upon the Democratic principles embodied in the Virginia and Kentucky Resolutions caused the repeal of the Alien and Sedition laws. Thus, for a time, the South had triumphed in its strict construction of the constitution. We should not forget, however, that party spirit ran high at this time. The Federalist and Republican leaders of the Virginia Assembly were hardly on speaking terms, and would not even reside at the same boarding-houses in the city of Richmond. It was at this time that Patrick Henry, who had opposed the adoption of the constitution, declared himself a candidate for the legislature in Charlotte county, in order that he might come to that body and debate the great constitutional questions with Madison. The story of his speech at Charlotte Courthouse, answered by John Randolph, of Roanoke, then a mere stripling, who was a candidate for Congress as a Jeffersonian Democrat, is told in every school history. Strange to say, the people of Charlotte elected Henry on one platform to the Virginia Assembly and John Randolph on the opposing platform as a member of Congress. Henry, as will be recalled, died before the Assembly met. How interesting it would have been to posterity to have had the opportunity to read a debate in which Madison was attacking the government which he had, in 1788, asked Virginia to ratify and in which Henry would have been advocating the acts of that government which he had tried to prevent his state from ratifying.


Over the tariff controversy, however, the nullification doctrine was to be tried. The high tariff laws enacted by Congress produced great dissatisfaction in the state of South Carolina, which claimed that tariff for protection was unconstitutional, as by clause 1, section 8, Article I., of the constitution, Congress was granted the right to collect duties for revenue only. This strict construction of the constitution as to tariff has always been, and still is, the Southern view. The state of South Carolina called a convention and nullified the tariff law of 1832 on the grounds that it was unconstitutional, and declared that the same should not go into force in South Carolina. The matter was never brought to a final test, though President Jackson issued a proclamation declaring that the tariff law should be put into force, and Congress passed almost unanimously a “force bill” to compel the state of South Carolina to submit. The Congressional debates over the question discussed the origin of the constitution. The Southern leaders argued for the compact theory, though many were not in accord with South Carolina’s action. Northern leaders, notably Webster, held the view that the states could not possibly

get out of the Union and could not possibly nullify a law of the Federal government. To settle the matter peaceably, Clay introduced a compromise by which the tariff duties were reduced, and thereupon South Carolina withdrew her nullification of the tariff law of 1832, though it nullified the force bill, which never was repealed by Congress. South Carolina had accomplished its purpose, in that it caused the reduction of the tariff. On the other hand, in view of the fact that Congress passed a bill to coerce an independent state and that Jackson was preparing to send troops to South Carolina, we clearly see that the doctrine of nullification, when a state had the temerity to attempt it, was not accepted in fact, though in theory the Virginia and Kentucky Resolutions were accepted by Jackson’s adherents. Moreover, the Federal Congress at this time by taking no action refused to go on record, for Calhoun introduced a series of resolutions in the Senate declaring that the Federal government was a compact and that the several states had retained their sovereignty. Mr. Webster spoke against these resolutions, claiming that the makers of the constitution had never had any such view and that Mr. Calhoun’s view meant secession, a doctrine pernicious and unheard of, and that anything like nullification or secession would be revolutionary, and was both legally and morally wrong. This view had come to prevail in many parts of the North at this time. Mr. Calhoun’s resolutions were never voted upon, but, generally speaking, the attitude of the South was favorable to Calhoun’s resolutions. On the other hand, President Jackson’s view, as clearly set forth in his proclamation against South Carolina, were very different, for, he said, “I consider the power to annul a law of the United States, assumed by one state, incompatible with the existence of the Union, contradicted expressly by the letter of the constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.” Moreover, the President went further and said: “The constitution of the United States forms a government, not a league. To say that any states may at pleasure secede from the Union is to say that the United States are not a nation. Secession, like any other revolutionary act, may be morally justified by the extremity of oppression; but to call it a constitutional right is confounding the meaning of terms.” Thus one of the Southern leaders practically declared against secession as a constitutional right. It is also of interest to remember that the Virginia legislature in the midst of this conflict passed a resolution reaffirming her resolutions of 1798, but declaring that these resolutions sanctioned neither the action of South Carolina, nor the proclamation of the President.

Other Questions of Dispute Involving an Interpretation of the Constitution.

The Southerners in the early days broke their theory of strict construction by the purchase of the great Louisiana Territory, which more than doubled the United States. Strange to say, the Federalists of New England, who had stood for loose construction, opposed the annexation of this territory on constitutional, as well as other grounds. Mr. Jefferson realized that the constitution did not give Congress power to annex new territory, and he proposed that the Louisiana Territory should be annexed by a constitutional amendment, but the Southern Democrats in their haste ignored his request and simply annexed that territory by the ratification of the treaty with France. This self-same Democratic party of strict construction, which was dominated by Southern leaders, afterwards purchased Florida, annexed Texas and acquired large territories from Mexico.

On the matter of internal improvements, the Southern leaders in the early days were pronounced in their views that the Federal government had no right to build roads, canals or to improve harbors within the limits of any state. The clamor for internal improvements, however, was taken up by the Whig party, and on this principle the South became greatly divided, some holding that Congress did have the right under a clause allowing it to build post roads, etc., to promote a system of internal improvements, and on this principle the loose constructionists have prevailed.

Another matter that might be mentioned is the question of taxation other than tariff. The South has for more than a generation advocated an income tax, which could not possibly be constitutional except by a very broad construction of the powers of Congress. As a matter of fact, the Supreme Court of the United States has declared the income tax unconstitutional, but in the face of this the Democratic party in recent years has declared in favor of this measure, thus striking at the power of the Supreme Court.

In passing, it might be noted that many Southerners as well as Northerners were opposed to internal revenue laws taxing distilled liquors, tobacco products, etc., but the loose construction view has come to prevail in this matter, though a few Democratic leaders in the South to-day hold the old view that the internal revenue taxes are unjust and unconstitutional.

The Institution of Slavery and Its Influence on the Interpretation of the Constitution.

The constitution of the United States did not deal with the question of slavery, though it recognized its existence, in view of the fact that Congress was given the power to enact fugitive slave laws under Article IV., section 2, clause 3. When the Quakers of Pennsylvania applied to the first Congress of the United States that steps be taken to provide for the abolition of slavery in all parts of the Union, Congress very properly and very promptly accepted the Southern view that Congress had no power whatever to legislate on the abolition of slavery, a right which lay entirely with the states themselves. This view was held by all the Southern leaders and most of the Northern leaders, though a small minority of the Northern leaders did favor Federal interference. However, by accepting the ordinance for the government of the Northwest Territory passed in 1787 whereby slavery was excluded from that territory, Congress committed the government to a policy of dealing with slavery in the territories, construing the second clause of section three, Article IV., as granting this right. The expansion of the country, no provisions for which were made by the constitution, was closely allied with the extension of slavery; hence much of the opposition of the North to expansion movements. For all new territory the Southerners favored a liberal form of government. For the entire Louisiana Territory, the South stood for slavery because the treaty with France guaranteed to the people of the Louisiana Territory all rights in property which they had enjoyed under Spanish and French rule. When Louisiana was admitted as a state into the Union in 1812, it was bitterly opposed by New England, fearing the influence of new slave states in the Union. For eight years after the admission of Louisiana matters moved quietly, until the territory of Missouri applied for admission into the Union as a state recognizing slavery. Only a year before Illinois had been admitted into the Union as a free state, and the anti-slavery element felt that it would be injurious to the interests of a free state lying contiguous should Missouri come into the Union holding slaves. Northern members proposed, therefore, that Missouri should be admitted to the Union only after it had abolished slavery. After a warm discussion the bill to admit Missouri on these conditions having passed the House, failed in the Senate. The next year the matter was settled by a compromise, admitting Missouri as a slave state with the understanding that no territory north of the 36° 30′, southern boundary of Missouri, should ever be open to slavery. Those Southern members who did not believe in the constitutionality of a line dividing slave from free territory blundered by voting for the measure, but this only illustrates a political inconsistency, justified by the desire of securing peace and of admitting Missouri as a state. Only eighteen Northern votes were cast for that part of the measure admitting Missouri as a slave state, while thirty-seven Southerners voted against that part of the compromise making a line dividing slave from free territory, claiming that it was unconstitutional. John Randolph, of Roanoke, was one of the Southerners who refused to vote for the compromise. The compromise as a whole, however, was passed by Southern votes, though the Southern view was clearly that territories, being the property of the United States, were open to all the states on equal footing. Mr. Madison, Mr. Jefferson and John Taylor agreed that the act making all territory north of a given line forever free soil was unconstitutional.

Ten years later the abolition movement began to grow. At first it created sentiment opposed to slavery, but soon the sentiment of the North grew into bitterness and became forgetful of the constitutional aspects of the question. This, consequently, produced bitter feeling on the part of the South towards the movement, though in the early days of the Republic many Southerners had favored abolition. The proposition to annex Texas was vigorously opposed by the anti-slavery leaders because it meant a new slave state in territory greater than one-third of the original United States. Following this came the Wilmot Proviso, which barely failed becoming a law, asking that slavery be excluded from all territory secured from Mexico. This Proviso, if adopted, would have been in the eyes of the Southerners as unconstitutional as the Missouri Compromise. In the midst of this fight over the question of slavery in the territories came a new doctrine proposed by some Northern Democrats, among the leaders of whom was Senator Douglas. These Democrats said: “Let the question of slavery alone; the people should rule. If the inhabitants of any section wish slavery, they should have it. If they wish to reject, let the decision be with them. It is a question of internal and not of national policy to be determined by new states as by the old upon the principles of independent local self-government.” This was the doctrine of squatter sovereignty, and in opposition to it there came into the political arena the Free Soil party, declaring that all the territories should be kept as free soil. This party, headed by Martin Van Buren, split the Democratic vote of the North, thus resulting in the election of the Whig candidate, General Taylor, as President in 1848.

At every step in the slavery controversy the nature of the constitution was debated. When the question of admitting Texas first came up Calhoun had presented resolutions on the nature of our government, reaffirming the compact theory and declaring that the Federal government had no right whatever to interfere with slavery. The resolutions passed the Senate by a vote of 41 to 34. Ten years later, at the time of the Wilmot Proviso, Calhoun again offered in the Senate a like set of resolutions declaring that the territories were the common property of all the states, and that Congress had no constitutional right whatever to exclude slaves from them. This was approved by the Senate by a close vote. Of practically the same nature were the resolutions offered by Senator Jefferson Davis, of Mississippi, in 1860, preparing the way for secession, which resolutions were opposed by all the Republican senators, but supported unanimously by the Southern senators.

In 1850 California was applying for admission into the Union as a free state, though a portion of it lay south of the line 36° 30′. The Southern view was that all territory south of this Missouri Compromise line should be open to slavery. Again Clay entered the breach and secured the adoption of a compromise, whereby California was admitted as a free state to which the Southerners ought not to have objected, for they believed that every state had a right to settle the question of whether it would or would not have slavery. All the territories south of 36° 30′ were still left open without any restriction as to slavery. The most important feature of the compromise was a stringent fugitive slave law. The South secured all that it could consistently ask for, and the North was chagrined on account of the fugitive slave law. The compromise of 1850, was, therefore, on a whole exasperating to the Northern people.

The first fugitive slave law had been passed in 1793, placing the burden of arresting fugitive slaves upon state officers. The Supreme Court of the United States in the case of Prigg vs. Pennsylvania (1842) had declared that the Federal government could not impose upon any state officials the duty of executing the law of the United States, hence the new fugitive slave law of 1850 provided that Federal authorities should arrest fugitive slaves. Slave owners at once demanded the return of many fugitive slaves residing in the Northern states. One of the most notable cases occurred in Boston in 1851 where a negro named Shadrach was rescued from a United States marshal by a mob consisting of some of the best citizens of Boston. Nearly every Northern state also passed personal liberty laws, which prevented the operation of the Federal statute, thus nullifying the fugitive slave law as much in reality as South Carolina had attempted to nullify the tariff act, the only difference between Northern nullification and Southern nullification being that it did not strike directly, but indirectly, and did not proceed constitutionally by calling a convention of the people, but through the legislatures. Had the President of the United States issued proclamations against the states enacting these personal liberty laws and called upon the United States to enforce the fugitive slave law in the same way that Jackson issued his proclamation against South Carolina’s nullification and was ready to coerce the state, the history of our country might have been different, and we might have heard of the secession of the Northern and not of the Southern states.

In the meanwhile, the squatter sovereignty doctrine was growing and it was embodied in the Democratic platform of 1852, which also reaffirmed the doctrine of the Kentucky and Virginia Resolutions of 1798 and 1799, and favored the enforcement of the fugitive slave law. Upon this platform Franklin Pierce was elected, though there was strong opposition from the Whig and Free Soil parties. In pursuing its principles, the Democratic party, in 1854, organized Kansas and Nebraska into territories with no provisions excluding slavery, it being left open to the territories to determine whether or not they would have slavery. The squatter sovereignty principle had prevailed in Congress. The Senate vote was 37 to 14, all Southern Senators approving. The House vote stood 113 to 100; voting for the measure were 44 Democrats of the North, one-half of the Democratic delegation from that section, and nearly the whole Southern vote, as only 9 Southern members voted against the bill.

Two years later came the presidential election of 1856, the Democrats nominating Buchanan and the Republicans Fremont, the Republican party having been formed out of the old Free Soil party as the result of the Kansas-Nebraska bill. The remnant of the Whig party nominated Fillmore. The Democratic platform reaffirmed the platform of 1852 and endorsed the Kansas-Nebraska bill, while the Republican party declared for the exclusion of slavery from the territories. Every Northern state voted for Fremont except Pennsylvania, New Jersey, Indiana and Illinois.

Power of the Supreme Court.

For the first ten years of the Federal government the Supreme Court was not considered the judge of the constitutionality of state or Federal law, hence the importance of the Kentucky and Virginia Resolutions. With the appointment of Marshall as Chief Justice of the United States, a new era was inaugurated. For more than thirty years Marshall,

at the head of the court, sustained by Mr. Justice Story, rendered decisions which tended to give to the court the right to declare on the constitutionality of Federal and state laws. Jefferson attacked the judiciary and caused the law which established Federal circuit courts to be repealed. In the case of Marbury vs. Madison, Marshall maintained the dignity of the court in opposition to the executive. Under Jefferson’s influence, impeachment proceedings were begun against Justice Chase and against Pickering, a district judge in New Hampshire. The latter was removed from office. In commenting on this action, Justice Chase said: “The independence of the national judiciary is already shaken to its foundations, and the virtue of the people alone can restore it. Our Republican constitution will sink into a mobocracy, the worst of all possible governments.” But on the failure to impeach Chase, the dignity of the court was sustained, and Jeffersonian Democrats saw that the only way to control the Supreme Court was to fill vacancies with men of their way of thinking. But with Marshall and Story on the bench it was difficult to control the court, and for a number of years the court rendered decisions which strengthened its powers and those of the Federal government. In 1809 the Supreme Court decided in favor of Judge Peters, of the Pennsylvania district court, in a struggle for authority against the governor and legislature of that state who refused with violence the writs of the United States district courts. Later, in the cases of Martin vs. Hunter’s lessee and of Cohens vs. Virginia, the court decided that it had a right to take cases on appeal from the state courts and thus to make itself the final tribunal in constitutional questions. In the case of McCulloch vs. Maryland and Osborne and others vs. the Bank of the United States, the doctrine of implied powers was clearly maintained. Marshall said: “Let the end be within the scope of the constitution and all means which are plainly adapted to that end which are not prohibited, but consistent with the letter and spirit of the constitution are constitutional.” Marshall also laid down principles controlling the states, when in a decision relating to the grants of land by the Georgia legislature he claimed that no subsequent legislature could repeal the grants, as it would be a violation of the obligation of contracts, prohibited by the constitution of the United States. The same decision was practically rendered in the celebrated case of Dartmouth College vs. Woodward, declaring that the legislature could not even modify a charter unless the parties affected gave their consent. The ultimate outcome then of Marshall’s decisions was to diminish the power and prestige of the state governments as compared with the Federal government. It was a great day for this country, in the eyes of some Democratic leaders, when John Marshall died, for his successor, who also presided for some thirty years over the court, was Roger B. Taney, of Maryland, a strict constructionist. It was into the court presided over by Taney that the case of Dred Scott, a negro who had been carried as a slave into free territory, was brought. The negro tried to obtain his liberty by an appeal to the courts on the ground that his residence in the free state had operated to destroy his master’s rights. The case on appeal was brought to the Supreme Court. The important question before the court was: “Is Dred Scott a citizen within the meaning of the constitution? Has he any rightful standing in the lower courts?” The court decided in the negative, that not being a citizen of Missouri he had no right to sue in state courts. Here a majority of the court was not satisfied to rest the case, but declared that as property, slaves could be carried into any territory and that Congress could not restrict or legislate this form of property out of the territories. In other words, the court declared the Missouri Compromise unconstitutional; moreover, it declared squatter sovereignty unconstitutional because it allowed a territorial government to exclude slavery, it only being within the province of a state to exclude or abolish slavery.

Secession Legal Under the Interpretation of the Constitution as a Compact.

The acceptance of this Southern doctrine of strict construction made the Republican party. In 1860 Lincoln was elected on a platform which declared that slavery should be excluded from the territories, and that the Dred Scott decision was a political heresy. Wonderful are the inconsistencies of politics, for from 1789 to 1835 it was the South which opposed the Supreme Court, while in the days immediately before the war it was the North against the Supreme Court; and to-day it is the Democratic party which is resisting the extension of the powers of the Supreme Court. Only a few years ago a Democratic platform contained a clause aimed at the power of the Supreme Court on account of its decisions on the income tax.

On the strength of the election of a candidate pledged to exclude slavery from the territories, the Southern states began to withdraw from the Union, headed by South Carolina in December, 1860. The form of the ordinance by which South Carolina seceded was simply that the people in convention assembled withdrew the ratifications which the people in convention had made of the constitution of the United States in 1788. This action is easily defended when we recall that the Southern interpretation of the constitution was that the people of each state separately was sovereign. On this interpretation, the belief that a state had a right to withdraw from this compact was consistent. Such had undoubtedly been the belief of Virginia and Rhode Island, when, in ratifying the constitution, they reserved this right; such the belief of the statesmen who framed the constitution; such the belief which had existed at times in all parts of the country, North and South; such the belief of John Taylor, of Virginia, when he proposed, in 1797, that Virginia and North Carolina should secede; of Josiah Quincy, of Massachusetts, when he said on the admission of Louisiana that the Union ought to be dissolved; of the Hartford Convention when it threatened secession because New England’s commerce was being crippled by the second war with England; of William Lloyd Garrison, when amidst great applause at the time of the Mexican War, he proposed that Massachusetts should lead in a secession movement; and of John Quincy Adams, when at the time of the admission of Texas he had declared in Congress that New England ought to secede; such the belief proclaimed from time to time by both Northern and Southern leaders in the halls of Congress. This doctrine, however, had been denied by such men as Story, Webster and, indirectly, though not directly, by Marshall’s decisions. The South was, therefore, asserting an old principle which their fathers had believed in, but which as the country grew was denied, particularly by the new states admitted from the North. In fact, it was the great Northwest Territory (Virginia’s gift to the Union) which became the bulwark of the national ideas, claiming that the country was a nation and that it could not be dissolved by a peaceable withdrawal of states from the Union.

Granting the legal right of secession, the question is frequently asked was the exercise of that constitutional right expedient? On this point the South was somewhat divided; while a vast majority believed in the right of secession, in some states only a narrow majority believed that it was expedient. Though South Carolina passed its ordinance of secession unanimously, states like Georgia, Virginia and North Carolina were greatly divided in sentiment. Alexander H. Stephens, of Georgia, Graham and Vance, of North Carolina, and Henry A. Wise, of Virginia, at first opposed the movement. Robert E. Lee regretted to see Virginia leave the United States. Hundreds of prominent men could be mentioned who opposed secession on the ground of inexpediency. Many, however, who were opponents of secession, became strong advocates of the Confederacy. Their positions are very clear, for though doubting the expediency of secession, but believing that sovereignty lay with the people of the states separately, it was their duty to yield to the will of the sovereign power. Therefore, the action of Southern statesmen is explained by their view of the nature of the constitution, sovereignty being in the people of each individual state, not in the people of the United States as a whole. Because of this view of sovereignty Southerners who fought for the Confederacy are not to be branded as rebels or traitors, for they were obeying the will of their sovereigns.

The Position of the South To-day as to the Interpretation of the Constitution.

In the election of Lincoln, the Republican party had attacked the Supreme Court. The fact that the court was not acknowledged as supreme in settling constitutional matters, as well as the intensity of the situation, made impossible an appeal of the question of secession to the Supreme Court. Since the North, as a whole, refused to recognize secession, war only could settle the question, and by war secession, as a constitutional right, has been destroyed. Moreover, the supremacy of the Supreme Court in deciding constitutional matters has since been established. In the case of Texas vs. White, the court held that the Union was indestructible, but at the same time it has not ignored other great states’-rights questions, especially is this seen in the Slaughter House cases. But no longer does a state government or a state court claim the right to act finally upon a constitutional question. The constitutionality of a law is not fixed by its passage through Congress, as is the case in England where whatever passes Parliament is constitutional. Congress can pass an unconstitutional law just as much so as any state legislature. English jurists may speak of Parliament as omnipotent, but of Congress we can not say as much, since the Supreme Court may declare null and void any law that infringes the powers granted or reserved to the states, or to the Congress of the United States.

The South to-day occupies its old position of asking a strict construction of the constitution, but no longer does it claim that the states have the final voice in determining whether any particular act or action is constitutional as claimed in the Virginia and Kentucky Resolutions, but it acknowledges the Supreme Court as the final arbiter in constitutional matters. It, however, looks askance at the Supreme Court and the loose construction doctrines, which may be proclaimed by the Supreme Court now as of old. Today the Federal courts frequently render decisions based upon the implied powers of the constitution and the first section of the Fourteenth Amendment, not satisfactory to Southern statesmen. We have but to consider the decisions in the North Carolina railroad cases to see that the Federal courts are dealing with many matters which previously have been handled and dealt with entirely by the state courts. As yet, Federal courts have refused to exercise jurisdiction over cases arising under the suffrage provisions of the constitutions of Southern states, but it is impossible to tell at what time some case may be brought into a Federal court which will strike even more deeply at the institutional life of our states than ever before. The question of annexation of territory has been settled along loose construction lines; the decisions of the Supreme Court with reference to slavery were wiped out by the War of Secession; and the national bank stands under a loose construction interpretation. The only great unsettled matter that presents itself to the country at large to-day is the control of corporations of a commercial nature, which makes the question one of interstate relations. Upon this great question the Federal courts will finally have to declare themselves fully. From recent indications in the railroad cases of Virginia, it appears that the loose construction view will again be held by the Supreme Court, and its present ruling that an inferior court of the United States can issue an injunction against the Virginia corporation commission, which is in a sense a state court, is very humiliating to those who believe in the states’-rights doctrine. Under the 3d clause, 8th section of Article I. of the constitution, Congress has the right to control inter-state commerce, but if the Federal courts should construe this clause broadly so as to interfere with inter-state commerce, the same old problem of states’ rights will again become a more important issue.

In conclusion, it seems that history shows that while there have been inconsistencies on the part of the South in the interpretation of the constitution, generally speaking, her statesmen have been consistent in holding that Congress is strictly limited to the powers specifically granted to it by the constitution and that all other powers are reserved to the states themselves. The War of Secession has made a nation out of a Federal government, but there is still the question of states’ rights, just as live in its importance to the country as it ever was in antebellum days. The question is still debatable; “To what extent can Congress legislate and to what extent can its legislation restrict the state legislatures in purely state matters?” The South is undoubtedly in the forefront in arguing that the state governments are the bulwarks of American liberty and that there is a line of demarcation between Congressional and state powers beyond which Congress cannot go. Thus to-day while the old South with the old view of states’ rights is dead, the new South with a new view of states’ rights lives to protect and defend the constitution and to maintain the rights of the people. Therefore, in one sense the South is playing as important a part in the interpretation of the constitution now as it ever did in the past. Indeed, it may be said that its constant demand that states’ rights shall not be ignored has more force to-day than it ever had before, because no one now doubts the sincerity of the Southern people, for slavery, the great curse of their civilization, has been removed by the greatest interstate war that the world has ever witnessed.

J.A.C. Chandler

J.A.C. Chandler (1872 – 1934) held a doctorate in History from Johns Hopkins University and was the 18th President of the College of William and Mary (1919-1934). His also called the "Father of Colonial Williamsburg" for his role in transforming the sleepy little historic town into a grand tourist attraction.


  • Paul Yarbrough says:

    “To what extent can Congress legislate and to what extent can its legislation restrict the state legislatures in purely state matters?”
    The answer is none. With no right to nullify or secede, the Supreme Court is truly “supreme.”
    The people are “checked” and “balanced” under a rule much like The Planet of the Apes.

    • Gordon says:

      That is incontrovertably true, I believe. Whether we adhere to the status of the U.S. Constitution as a “living document” or one of “original intent” the matter was settled by result of the “greatest interstate war that the world has ever witnessed”. In the words of Lincoln’s Supreme Court Chief Justice, States Rights died at Appomattox.

      It may be that a Constitutional Convention is a possibility, yet the people I’d trust with our interests wouldn’t be welcome.

  • scott Thompson says:

    with the bank issue….could say at the time, congressionally, 15 state banks be brought into existence with inflation agreements so as to keep one central power having the purse and no state bank could really get away with overinflating or scheming?

  • scott Thompson says:

    for a time, the South had triumphed in its strict construction of the constitution. ….this also bugs me.. strict construction? doing what was ratified is adjective-ized as strict, as opposed to truthful and what is stated.

    • Gordon says:

      Antonin Scalia had the best standard, one which would have pleased Madison and Jefferson. Any challenge to the Constitution will be decided by “original intent”. It takes study but the Founders’ intentions are readily discoverable. With the 2nd Amendment alone, there is abundant correspondence back and forth leaving no doubt their intentions to see the people armed.

  • Richard D Hawthorne says:

    The article is a terrific overview of Southern Constitutionalism, which was the dominant Northern position at the time of Ratification in many ways.

    I am sorry he ended the piece by saying secession was no longer constitutional. The original intent of the ratifiers is still the original intent of the document even if this is not explicitly stated in the Constitution. The entire foundation of our Confederated Union is the right of self-determination in government if that government becomes oppressive. The Founding itself is the secession of the States from England, it is ludicrous to hold a position that the Founders sought to deny their children a right they believed themselves to have. The right to self-determination in government is a natural right by virtue of being human, not one that can be bestowed or taken away by the government itself.

    Neither the Supreme Court nor Washington D.C. nor its guns has the right to change this. 1865 was an usurpation of the original Republic of republics grounded on the compact of the Constitution. The Federal government may have the might, but it has not the right. And we all know that the principle that “might makes right” is nothing other than tyranny.

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