On this day 232 years ago, thirteen British colonies asserted them each sovereign States and declared their independence from the English Crown. There was then no United States of America only thirteen distinct and independent nation-states. At the end of the bloody eight year war that perfected their declaration, these States sought to form a union that would offer each of them and all of them protection of the freedoms so preciously purchased. Finding the first attempt at a compact, The Articles of Confederation, insufficient the States sought “a more perfect union” and after much toil and strife brought forth in 1787 The Constitution of The United States of America.
The Constitution created a republic in which a limited common government would preside over a strictly enumerated set of powers leaving all other prerogatives to the sovereign States which had created it. Nothing in the document remotely suggested or anticipated the federal government should dominate as it does today. It was anathema to The Founders that the Union might one day become no longer a federation of sovereign States but rather a vast empire of quasi distinct provinces ruled by an all powerful central authority. As I write on this Independence Day, I am given to ponder; what happened to the United States?
Almost immediately upon its formation the national government began to claim powers it was not granted and that were prohibited to it. In 1798 the Federalist Party under President John Adams passed the Alien and Sedition Acts which permitted the central administration to arrest and imprison any alien [residing in any State] it deemed a threat to homeland security and made political speech in opposition to the sitting government a high federal crime. In response, Kentucky and Virginia passed resolutions [written by Thomas Jefferson and James Madison respectfully] condemning the acts and asserting the States to be the court of last resort on questions of constitutionality. These resolutions further affirmed the right of any State to veto [or nullify] an act of Congress if it thought the act to be un-constitutional and to make it nugatory within its own country. The offending acts were soon repealed and liberty restored.
Ironically Jefferson participated in what has proven a mortal wound to popular government. In 1803 Marbury v Madison, a historically meaningless dispute over the appointment of federal magistrates, the Supreme Court claimed – under color of no constitutional authority at all - sole ownership of The Constitution and thus to be first among the three “equal” branches of government - and the States - when it ruled that Jefferson’s Secretary of State James Madison had unlawfully refused to deliver an appointment to Mr. Marbury. Chief Justice John Marshall had been Secretary of State under Jefferson’s fierce political foe John Adams.
Here is the first merging of politics and the judiciary. Marshall cleverly avoided a direct clash with the executive branch by not ordering Madison to deliver the judgeship [which would have certainly been refused] instead merely offering what seemed at the time to be an innocuous opinion of law. Meanwhile the power of the Capitol grew at the expense of both liberty and the States.
The next usurpation of State authority occurred in 1819 and gravely wounded republican ideals. With McCulloch v Maryland, The Supreme Court set itself above even the Constitution when acting as exclusive judge of the acts of its sister branches, declared the Constitution to have assigned the national government broad “implied powers.” Powers that were nowhere enumerated or contemplated in the founding document. In McCulloch, the federal government, through a concurrence among the President, Congress and The Supreme Court eviscerated the 9th Amendment and kicked down the door Marshall had eased open in Marbury, permitting to itself virtually un-circumscribed powers, limited only by one’s interpretation of “implied.”
In 1831, President Andrew Jackson took actions which somewhat restored the balance of power between the States, Congress, The Presidency and The Supreme Court. In that year The Supreme Court barred the government of Georgia from removing the Cherokee from their tribal lands. Georgia ignored the ruling and President Jackson who had pushed through Congress, The Indian Removal Act of 1830 refused to enforce the Court’s order with federal troops. Whether he acted immorally toward the Cherokee is not in view here. What Jackson did do was to re-assert the equality of the Presidency viz a viz The Supreme Court and show why Hamilton and Madison thought the Court the weakest of the three elements of the government. “Old Hickory” is famously to have said: “Judge Marshall made the ruling, let him carry it out” Abraham Lincoln would later apply this same axiom in a dispute with Chief Justice Roger Taney.
Jackson played a primary albeit opposite role in the next confrontation between the still sovereign States and Washington when in 1828 Congress voted entirely along sectional lines to institute “The Tariff of Abominations.” This act a protectionist rather than a revenue measure, laid a fifty per-cent tariff on virtually all imported manufactures. Such a high exaction was ruinous to the agricultural economy of the South. Seeking to advance his standing in the Middle Atlantic and Northeastern States for an upcoming run for President, Jackson had sold the South down the river, having his surrogates in Congress support the tariff bill.
In 1832 South Carolina reacted by claiming again the doctrines of “state interposition” or “nullification” that first were asserted by Kentucky and Virginia in 1799. John C. Calhoun, writing for South Carolina found no constitutional authority that permitted the levying of a protectionist tariff and further argued that any act of Congress that preferred one group of States to the detriment of others was unconstitutional on its face. South Carolina acting in Convention declared the tariffs of 1828 and 1832 null and void within its boundaries and barred collection of the imposts by federal agents. President Jackson heretofore a staunch defender of the supremacy of the States, declared nullification treasonous and dispatched warships to Charleston. Calhoun who had resigned the Vice Presidency to return to the Senate and Henry Clay of Kentucky saved the republic - and the nation from war - by working out the compromise Tariff of 1833. This was the first time the Union had sent gunboats militantly into the harbors of a State. It would not be the last.
Between 1832 and 1860 the issue of slavery dominated political debate. It may well be said that slavery was the cancer that ultimately killed the American Republic. In the 1850’s Northern abolitionists in Congress rammed through hard anti-southern policies including rising tariffs and demands for the end of the “peculiar institution.” The 1860 election to President of Abraham Lincoln, head of the abolitionist Republican Party, was the last straw for South Carolina, always the most determined of the States in opposing federal authority. She resigned the Union on December 20, 1860.
The end of the republic might yet have been avoided had there been less duplicity on the part of President Lincoln and more wisdom and restraint on the part of the Carolinians. Rather than resolutely pursuing a diplomatic solution to the schism both sides rattled their sabres until they were covered in blood. When Lincoln goaded South Carolina into firing on Fort Sumter, a mortal blow was struck to the idea of a North American Republic and much that The Founders had strived for and dreamed of would soon be in ruins.
At the conclusion of The War Between The States there were no States, only provinces of the federal regime. By force of arms, at the cost of half a million American lives and the utter destruction of half the nation, Washington fully and forever established itself as the omnipotent North American power; from sea to shining sea. On that day April 9, 1865, The United States ceased to exist and The American Empire was born.