Vol. 11 No. 1 (January 2001) pp. 54-56.

STATES' RIGHTS AND THE UNION: IMPERIUM IN IMPERIO, 1776-1876 by Forrest McDonald. Lawrence, KS: University Press of Kansas, 2000. 296 pp. Cloth $29.95. ISBN: 0-7006-1040-5.

Reviewed by Joseph Reisert, Department of Government, Colby College.

In a series of controversial rulings, the United States Supreme Court has breathed new life into the hoary notion that the States remain, at least in some respects, sovereign. For all their familiarity, however, the words sovereignty and federalism remain among the most obscure and contested terms in the American political lexicon. We too easily forget that the very idea of sovereignty implies the impossibility of federalism: either there is a source of ultimate authority in a polity or there is no such source. Hobbes had argued that sovereignty cannot be divided without sowing the seeds of civil war, and our Founding Fathers aspired to prove him wrong. We tend to forget how radical an idea and difficult an undertaking it was to produce a constitution that divided sovereignty to produce a frame of government at once national and federal. The Supreme Court, it would appear, has resolved to remind us. Not since the early decades of the republic has the Court inquired so closely into the nature and structure of American federalism, and its interest in federalism seems unlikely to wane anytime soon.

Anyone planning to accept the Supreme Court's invitation to reconsider the nature of our federalism would do well to consult Forrest McDonald's latest book, STATES' RIGHTS AND THE UNION. As its subtitle indicates, the work covers the first hundred years of the American republic, from independence to the end of Reconstruction. McDonald aims to provide a general history of the various controversies regarding states' rights that raged during that period. In that aim he succeeds admirably. His prose is lively, and he narrates events with a sure touch. McDonald's authorial voice is quietly authoritative, and he deftly chooses examples and quotations to enliven his accounts of the central incidents in the narrative. As McDonald readily acknowledges, his work here is primarily synthetic, bringing together insights drawn from his reading of the numerous scholarly works (including a number of his own earlier publications) devoted to each of the particular incidents that comprise his story. Those borrowings are amply documented. The endnotes run to a full 47 pages, including references to scores of works.

McDonald situates the controversies familiar to readers of constitutional law casebooks -- over the Bank of the United States, the disposition of Lord Fairfax's Virginia properties, the Charles River Bridge, the fate of the Cherokee Nation, and the rest -- within the context of their times. He reminds us that these incidents form only a part of a larger pattern, which includes incidents, like the great struggle over the tariff, that have left only insubstantial traces in the UNITED STATES REPORTS. That larger pattern reveals, disconcertingly, that

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the Framers' hope that ratification of the Constitution would prove once and for all that governments could be the product of deliberation and choice rather than accident and force was not fully realized. The history of our republic's early years demonstrates that the shape our governments took on in practice owed very nearly as much to the latter as to the former. No less an advocate of states' rights than Thomas Jefferson expanded the navy to combat the Barbary pirates, and he subsequently disregarded constitutional niceties to seize the opportunity to purchase Louisiana from Napoleon. After the nation stumbled into the 1812 war with Britain, the erstwhile Federalists of New England appealed to the ideology of states' rights to justify their refusal to support "James Madison's war" and spoke openly of secession. Having learned painfully the inadequacy of the state banks and state militias in time of war, Madison reversed his earlier positions and set about creating a standing national army and a second national bank.

Both friends and foes of the contemporary Supreme Court's federalism jurisprudence will find something to cheer in McDonald's account. The former will undoubtedly appreciate McDonald's insistence that the "nationalist" interpretation of the Founding cannot really be sustained. Although it speaks of the colonials as "one people," the Declaration of Independence declares the thirteen colonies to be "free and independent states" (emphatically in the plural), which were united in their opposition to the sovereignty of the British King. Even the Constitution is properly understood, he argues, not as the act of one people, but as a compact made among the peoples of the several states, acting in their capacities as sovereign. They had to act in this way, since to ratify the Constitution was in effect to amend the state constitutions, limiting the powers of the state governments in several ways. McDonald adds that we are to infer nothing from the fact that the opening words of the preamble, "We the people," are not followed by an enumeration of the states to which they belong (as in "We the people of New Hampshire, Massachusetts Bay, etc."); when the document was submitted to the consideration of the states, there was no way of knowing which states would ratify the document. Early controversies over the scope of national power and above all the struggle over the Bank have obscured this understanding of the Constitution, however. Supporting the Bank, Hamilton and later Chief Justice Marshall argued that the Constitution derives its power from the people of the nation. Opponents of the Bank, including Jefferson and Madison, argued as if the Constitution were nothing more than a compact among the states, made by the governments of the States. So forceful and influential were the two sides' arguments that between them they obscured the original understanding.

Advocates of a strong national government will find much evidence to bolster their position as well, and political scientists with an interest in the theory of federalism will find much to ponder as well. I must confess that reading STATES' RIGHTS AND THE UNION has caused me to doubt whether the Founders ever really succeeded in finding a way for the States and the Union to share sovereignty successfully. The divided sovereignty of the early republic made for some very tumultuous times. Federal statutes purportedly "nullified" by state legislation, judgments of the Supreme Court ignored, provisions of the Federal Constitution disregarded by state courts, repeated threats to secede issued, made by northern states as well as southern and provoked by a

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succession of issues, armed rebellion in one state, reckless financial schemes tried almost everywhere, and to top it all off, a Civil War that was the bloodiest conflict in American history-the nuclear blast, perhaps, ignited by our having "split the atom of sovereignty."

Machiavelli rightly observed that such tumults, large and small, go hand in hand with political freedom, and the reason is not hard to perceive: spirited men will protect their liberties and their other interests with all the forces at their command, including force of arms, so long as they retain the ability to do so. As long as it remained unclear whether the Union or the States would be the final arbiter of disputes between them, sovereignty could truly be said to have been divided. Under those circumstances both could plausibly claim to hold ultimate authority over the range of issues entrusted to it. The cost of that arrangement, however, was the constant potential and the occasional reality of conflict over the line of division between state and national authority. Considering the likely effects on our financial markets and our modern economy of the early republic's tumultuous politics, it is doubtful that it is a cost anyone today would be willing to pay. Since the Union's victory in the Civil War made it clear that nullification and secession are no longer live constitutional possibilities, we are not likely ever to have occasion to pay that cost. The balance of power has tipped decisively in favor of the Union. The states surely continue to have rights, but those rights are what the Union says they are, as the Supreme Court's five most ardent federalists had occasion to remind us just last December.

That STATES' RIGHTS AND THE UNION prompts such reflections and provides such a rich store of information testifies to the book's considerable merits as a work of history. My only criticism is that the book is either a little too long or much too short. Although McDonald devotes a chapter to Reconstruction and includes brief epilogue tracing the history of states' rights from 1876 to the present, both disappoint. McDonald makes some tantalizing observations about the ways in which the Civil War and its aftermath change the Supreme Court's stance towards States' rights, but he does not pursue them. Let us hope that he will find the occasion to do so in a subsequent volume.