Editor’s Note: December 2019 Issue

Federalism in the Civil War Era

This special issue focuses on the role of federalism in the Civil War era, primarily in the years before the war. Federalism—or the distribution of power among different governing bodies—defined how most nineteenth-century Americans understood their relationship to the government, both in theory and in practice.[1] These men and women did not simply interact with the government and the law; rather, they were forced to navigate the complex relationships and overlapping authorities among the various governing bodies and regulations that made up the federal system.

Until recently, Civil War–era political and legal historians primarily viewed federalism as a binary—as the relationship between the federal government and the states. There is good reason for this: the two most pressing elements of the study of federalism in the late twentieth and early twenty-first centuries have been the meaning of “states’ rights” in the conflict between northern and southern states and the role of the Civil War in producing the modern nation-state. This first emphasis comes from a desire to slay continuing Lost Cause dragons. Since the late years of the Civil War, Confederates and their defenders attempted to shift the meaning of the war from a conflict over slavery to one over the equality and sovereignty of the states. States’ rights, they argued, motivated white southerners to leave the union and caused the Confederacy’s downfall. No one captured this idea more distinctly than Confederate president Jefferson Davis, who later claimed he had told a colleague in 1864, “If the Confederacy falls, there should be written on its tombstone, ‘Died of a Theory.’”[2]

Historians have thoroughly dismantled the idea that Confederates fought primarily for a constitutional theory of states’ rights. Some have argued that white southerners only used states’ rights rhetorically, when it suited their political purposes. These historians often point to the 1850 Fugitive Slave Act—the single biggest expansion of federal power in the prewar period—and white southerners’ efforts to enact a federal slave code as evidence of states’ rights hypocrisy.[3] More recently, scholars have emphasized the power of white southerners within the federal government and, conversely, how white northerners relied on their own states’ rights arguments in fighting against slavery.[4] While legal and constitutional historians remain interested in how conflicts between state and federal power manifested in the prewar period, all agree that any states’ rights arguments that Confederates made were grounded in concerns about the peculiar institution.[5]

Historians who have studied Confederate governance have also shown just how problematic Davis’s quip remains. These scholars emphasize how quickly the Confederacy centralized in the Civil War years.[6] Their work has contributed to a second emphasis of scholarship on American federalism: the creation of the modern nation state. Works concerned with the growing power of Congress and executive bureaucracy in the Civil War and postwar years abound.[7] Since the 1990s, scholars influenced by political science have pushed back on the idea that the Civil War revolutionized the role of the federal government, emphasizing the expansive nature of the State—both at the federal and state level—in the antebellum period.[8]

In recent years, new directions in the study of federalism have begun to take shape. A group of legal scholars has shifted the word’s meaning beyond the federal-state binary to highlight the interactions among local, state, and federal powers and the prevalence of intersecting legal authorities. This new definition has allowed for key insights into the ways Americans understood and engaged with the federal system, particularly in the Revolutionary era and the twentieth century.[9] Yet this new work also presents an opportunity for Civil War–era historians to reinvestigate how governance operated during our period. Thus, the articles in this issue examine federalism from multiple angles and investigate how the structures of the federal system had significant consequences for how Americans engaged with the most pressing problems of the period.

The importance of understanding the role of local governance in American federalism is critical to Laura Edwards’s essay on how women participated in the public order in the period before the Civil War. As Edwards shows, assuming federalism consists only of the binary relationship between states and the federal government has clouded our ability to see the myriad ways that women navigated and engaged with the “overlapping jurisdictions” of law from the Revolution to the Civil War. This broad understanding of federalism allows Edwards to reevaluate a generation of historiographical conclusions about women’s marginalization from the law—including her own previous scholarship.

Politicians interested in harnessing the power of their voters for partisan or ideological purposes also had to think about the intricacies of the federal system from bottom to top and vice versa. Both Matthew Karp and Jack Furniss show how the antebellum Republican Party was remarkably attuned to the complexities of federalism. Like Edwards, Karp extends the importance of federalism beyond the states to consider the relationship between local and federal issues. As he explains, local vigilance committees—“extralegal” local entities that were key to the workings of antebellum federalism—helped shape Republicans’ antislavery commitment on the national level. Furniss highlights the flexibility of party officials in answering state concerns as a natural element of partisan politicking. With no standardized election cycle or polling spaces for the various local, state, and federal offices, partisans worked overtime to adapt party ideologies to each electoral contest in order to appeal to potential swing voters. The party system, Furniss shows us, mirrored the federal system of governance. Together, Karp and Furniss reveal how the feedback loops of the federal system required partisans to pay attention to how local, state, and federal concerns interacted, both in traditional and nontraditional government spaces.

The importance of the states as sovereign entities—outside of conflicts with the federal government—was also important to Civil War–era federalism, as the essays by William Blair and Kate Masur demonstrate. Blair takes up the relationships among race, poverty, and immigration in evaluating how the Pennsylvania legislature adjusted its voting regulations in the 1830s. Propertied white Pennsylvanians were worried not only about black voters but also the potential for these men to join with “transient newcomers” and “vagrants.” Masur takes a fresh look at the familiar case of Prigg v. Pennsylvania (1842), which invalidated Pennsylvania’s personal liberty law. While this case is best known for its connection to antebellum debates over slavery, Masur illustrates how Supreme Court Justice Joseph Story’s opinion is critical to understanding bigger questions of a state’s right to regulate its population. By reexamining controversies over slavery as part of broader conversation about police powers, migration, and poverty, Masur shows how committed northerners were to state sovereignty. Ultimately, looking at state power and politics through the lens of federalism, as the pieces by Blair and Masur do, provides a fuller picture of how race and class interacted in the Civil War era.

Americans’ understanding of federalism also extended beyond national concerns. In the final essay, Frank Towers places the U.S. debate over the intricacies of federalism in a broader conversation about divided sovereignty in world affairs. He shows how American ideas about states’ rights were actually consistent with a search for empire, even as the relationship between U.S. federalism and the nation shifted from the Early Republic through the post–Civil War years. In fact, many Americans’ fears of “consolidation” by the national government corresponded well with incorporating new territories into the polity; states’ rights advocates considered a diverse collection of homogenous entities a strength.

Overall, by engaging the federal system in serious ways, these essays upend much of what we know about key elements of American governance in the period before the Civil War, from women’s political roles to partisan politics and from the relationship between immigration, poverty, and race to theories of empire. Yet, the articles that follow are not the final word on Civil War–era federalism—far from it. They are meant to be a starting point, to inspire more scholars of the period to think creatively about the ways Americans engaged with the federal system—politically, legally, and beyond.

 

[1] Sara Mayeux and Karen Tani emphasize the importance of “federalism in practice” in “Federalism Anew,” American Journal of Legal History 128 (March 2016): 128–38. The authors borrow “federalism in practice” from Harry N. Scheiber and Malcolm M. Feeley in Power Divided: Essays on the Theory and Practice of Federalism (Berkeley: University of California, Institute of Governmental Studies, 1989), vii. I am grateful to Kate Masur for directing me to this piece.

[2] Jefferson Davis, The Rise and Fall of the Confederate Government, 2 vols. (Boston: D. Appleton & Co., 1881), 1:518.

[3] See for example Leonard Richards, The Slave Power: The Free North and Southern Domination (Baton Rouge: Louisiana State University Press, 2000); Manisha Sinha, The Counterrevolution of Slavery: Politics and Ideology in Antebellum South Carolina (Chapel Hill: University of North Carolina Press, 2000). Eric Foner has published several popular pieces on this point, including “When the South Wasn’t Such a Fan of States’ Rights,” Politico, January 23, 2015, https://www.politico.com/magazine/story/2015/01/underground-railroad-states-rights-114536.

[4] See for example, Matthew Karp, This Vast Southern Empire: Slaveholders at the Helm of American Foreign Policy (Cambridge, Mass.: Harvard University Press, 2016); Michael E. Woods, “’Tell Us Something about State Rights’: Northern Republicans, States’ Rights, and the Coming of the Civil War,” Journal of the Civil War Era 7 (June 2017): 242–68; and Stephen Engle, Gathering to Save a Nation: Lincoln and the Union’s War Governors (Chapel Hill: University of North Carolina Press, 2016).

[5] See Forrest McDonald, States’ Rights and the Union: Imperium in Imperio, 1776–1876 (Lawrence: University Press of Kansas, 2000); Don E. Fehrenbacher, Sectional Crisis and Southern Constitutionalism (Baton Rouge: Louisiana State University Press, 1995).

[6] The classic work on this subject is Richard Bensel’s Yankee Leviathan: The Origins of Central State Authority in America, 1859–1877 (New York: Cambridge University Press, 1990). Also see Michael Brem Bonner, Confederate Political Economy: Creating and Managing a Southern Corporatist Nation (Baton Rouge: Louisiana State University Press, 2016).

[7] See for example Leonard Curry, Blueprint for Modern America: Nonmilitary Legislation in the First Civil War Congress (Nashville, Tenn.: Vanderbilt University Press, 1968) and Heather Cox Richardson, The Greatest Nation of the Earth: Republican Economic Policies during the Civil War (Cambridge, Mass.: Harvard University Press, 1997).

[8] See, for example, William J. Novak, “The Myth of the ‘Weak’ American State,” American Historical Review 113 (June 2008): 752–72; Brian Balogh, A Government Out of Sight: The Mystery of National Authority in Nineteenth-Century America (New York: Cambridge University Press, 2009); Richard John, Spreading the News: The American Postal System from Franklin to Morse (Cambridge, Mass.: Harvard University Press, 1998).

[9] Mayeux and Tani, “Federalism Anew,” outlines a great number of new works on federalism from the founding period to the present. Yet, in their excellent piece, there is a conspicuous absence of citations to new work on the period between the Early Republic and Reconstruction, illustrating that there are many avenues left to be explored by Civil War–era scholars. Also see Andrew Shankman, “Toward a Social History of Federalism: The State and Capitalism to and from the American Revolution,” Journal of the Early Republic 37 (Winter 2017): 615–53, Laura F. Edwards, “Sarah Allingham’s Sheet and Other Lessons from Legal History,” Journal of the Early Republic 38 (Spring 2018): 121–47, and Edwards’s essay in this issue, “The Legal World of Elizabeth Bagby’s Commonplace Book: Federalism, Women, and Governance,” 504–23.