The Civil War and State-Building: A Reconsideration

The Civil War and State-Building: A Reconsideration

Gary Gerstle

A favored way of interpreting American political development in the United States is to stress the revolutionary effects of the Civil War on the American nation and its state. In this view, the defeat of the Confederacy interred states’ rights and concentrated power in the central government to an unprecedented degree. This central state, this “Yankee Leviathan,” in the words of Richard Bensel, first focused on creating a legal and political environment in which capitalism could flourish. In the hands of the Populists and Progressives, this same central state then developed the political resolve and administrative capacity to remedy the multiple ills that an unbounded capitalism had generated. By the time of the New Deal, big government, conceived in the tradition of European social democracy, had tamed big capitalism.[1]

What this account leaves out is how deep remained the commitment in the North across the Civil War years to keep intact the government ordained by the Constitution. Many of the new powers assumed by the federal government during that time were justified by war emergency and thus understood to be legitimate only so long as wartime lasted. Even the major effort during the Radical Republican era to move beyond circumstances of emergency and change the conception of governance permanently via constitutional amendment altered the balance of power between the states and the central government less than is commonly thought. The Civil War and Reconstruction era, therefore, may not have constituted a sharp pivot in the history of the American state.[2]

To have some sense of the possibilities and limits of state power in the Civil War and after, we need some sense of government before the war. The point of departure must be what students of federalism have always insisted: that from the start, the United States was a federal republic, meaning that it divided authority between the central government and the governments of the states. This division was central to an overriding ambition to prevent any one institution of government from gaining too much power. But America’s federal system went beyond a simple division of powers. It organized the two major divisions of government—the central state and the states—around different theories of power. A liberal theory animated and guided the central government. The fundamental principle of this theory was that citizens had rights that no government could take away except under the most extraordinary of circumstances; as a result, the powers of the central government had to be limited in clear and effective ways. Several features of the central government came to embody this aspiration: separating its powers into three independent branches, limiting the realm of federal authority to those activities specifically enumerated in the Constitution, and elaborating in the Bill of Rights a sphere of autonomy and security for the individual that the federal government would not be allowed to breach except under the most exceptional of circumstances.[3]

The power of the states derived from a different political principle—one that held the public good in higher esteem than private right. This principle called for a polity well regulated by government in which, as the legal historian William Novak has written, “no individual right, written or unwritten, natural or absolute,” could be permitted to eclipse “the people’s safety” or welfare. It resembled in part what scholars writing in the mid- to late twentieth century—figures such as J. G. A. Pocock, Quentin Skinner, Gordon Wood, and Mauricio Viroli—have called the ideology of republicanism. Like republicanism, this principle put its faith in the ability of responsible, virtuous citizens to determine and agree on the public interest, or salus populi, the people’s welfare. This principle was not indifferent to individual rights, but it insisted that the enjoyment of personal freedom and individual rights depended on the carefully regulated society that government would construct.[4]

This second principle of government endowed states with a scope of authority more capacious in many respects than that which inhered in the federal government itself. In truth, state governments possessed a staggering freedom of action. They had the power to direct internal transportation improvements; issue controls on capital and labor; build schools and libraries; and engage in town planning and supervise public health. They organized moral life. Rules governing marriage, drinking, narcotics, gambling, sexuality, theatergoing and the arts, and a community’s disposition to the migrant poor were all subject to the control of the states. The powers of the states, gathered up into a doctrine that the courts began calling the “police power,” could be deployed progressively, as, for example, in insisting that capitalist development be subjected to the people’s welfare, and regressively, as, for instance, in legislating hierarchies grounded in race or gender into law. Slavery itself was understood to fall within the purview of states and their police power.[5]

The view of government power I have outlined here is different from the one that has become popular these last fifteen years. Driving this latter interpretation is a desire to free American historiography from another conception of political development that was once ascendant, namely that the state in nineteenth-century America was weak and inconsequential. Those who argue in the “strong state” vein have sought to show that the state in America was powerful, capacious, and consequential.[6] I have learned a great deal from this revisionist wave; indeed it is fair to say that I am a product of it. But this perspective, in the hands of some of its practitioners, has generated new conceptual blind spots. Terms such as “Leviathan” and “Hercules” are increasingly deployed to describe the power of the central state, even in the antebellum years, as though this were a state of immense power.[7] Gone from this interpretation is a sense of the central government as a liberal institution in the eighteenth-century sense of that term: as a government formally limited in its powers and barred from interfering with certain fundamental rights held by its citizens. Absent as well is a sense that two levels of government operated according to different principles. In this revisionist interpretation, the state is often conceived of as a unitary institution, with all its parts pulling in the same direction—toward greater power and control.[8]

If the states are considered serious players at all within this interpretive frame, their period of influence is thought to have extended only to 1861. Then the Civil War allegedly changed everything. Slaying the slave power crushed the ideology and practice of states’ rights, and made the central government by far the most consequential player in American government. A new birth of freedom meant a new role for the federal government—launching its career as the protector of civil rights and as the engine both of economic growth and capitalist regulation.

A careful consideration of the Civil War and Reconstruction years raises serious questions about this interpretation, however. It is well known, for example, that Abraham Lincoln, upon election, did everything he could not to build a different governmental order. “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists,” he stressed in his 1861 inaugural address. “I believe I have no lawful right to do so, and I have no inclination to do so.”[9] Even if Lincoln had been an abolitionist at the time (which he was not), he would have been reluctant to commit the federal government to a program of emancipation. Slavery did not fall within federal jurisdiction; whether or not to have a slave system was a matter for states to decide. To make it a federal issue was to embark on creating a different governmental order; in 1861 or 1862 Lincoln had no appetite for a change of this magnitude. That is why he promised not to interfere with slavery in any of the secessionist states and why he pledged that those that rejoined the Union would retain their autonomy on the question of slavery.[10]

It did not take long, of course, for the war to make a mess of Lincoln’s intentions. The movement of northern armies into the slave states and the flight of African Americans from their plantations to unionist ranks created new facts on the ground. Union generals began refusing to return refugee slaves to their masters, as required by the Fugitive Slave Act, treating them instead as contraband—human property that Union armies could seize and hold indefinitely, if only to prevent these individuals from being returned to their legal owners and put to work in support roles in Confederate armies. Congress strengthened the legal basis of these seizures by passing the Confiscation acts. And then some generals went even further, abolishing slavery in the secessionist states that fell under their formal command. This was done as much to sow chaos within Confederate territory as for humanitarian reasons. Lincoln formally sanctioned these army initiatives when he signed the Emancipation Proclamation in 1863, which abolished slavery in every place under Confederate control after a brief grace period (meant to give the states in question one more opportunity to rejoin the Union) had passed.[11]

The power that the federal government arrogated itself via the Emancipation Proclamation was vast; the Union now had the authority to abolish a critical element of economic and social life in the South. But this power was clearly understood to be a war power, which meant assuming it required no serious change in the Constitution. The radical expansion in such powers was expected to expire once the war ended and a central government limited in its powers restored.[12]

Once again, facts on the ground undermined these intentions, this time because unionist slave states Kentucky and Delaware began declaring that they had no intention of abolishing slavery. Finding this stance intolerable, a large group of Republicans in Congress joined a campaign to move beyond war powers and to change the Constitution itself. The Thirteenth Amendment, ratified in 1865, ushered in this change, for it removed slavery from the jurisdiction of the states; it both compelled Delaware and Kentucky to give up their slave systems and required any of the defeated Confederate states seeking to rejoin the Union after 1865 to do the same. The Thirteenth Amendment dealt a severe setback to the autonomy of states and substantially enlarged the authority of the central government.[13]

In many accounts of the era, the Fourteenth Amendment is often regarded as an even more important amendment in terms of transferring power from the states to the federal government. It made citizenship the prerogative of the central government and barred individual states from passing laws that discriminated between groups of citizens on the basis of race and other ascriptive characteristics. But ambiguous wording in key clauses left uncertain how radical a shift in power from the states to the federal government the amendment had authorized. The federal government had clearly acquired the power to confer citizenship. Had it also acquired the authority to define the rights associated with citizenship? Did it now have the power that it had never had before—to require the states to abide by the Bill of Rights and not pass legislation that would interfere with freedom of speech, freedom of assembly, freedom of religion, right to a fair and speedy trial, and so on? Did it have the power to define new rights of its own invention and require the states to respect them? Or was the determination of rights still a decision to be left to the individual states?[14]

The wording of the critical sentence of the Fourteenth Amendment—“No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States . . . nor deny to any person within its jurisdiction the equal protection of the laws”—did not provide clear answers to these questions. On the one hand, the reference to the “privileges and immunities of citizens of the United States” not being abridged seemed to suggest that the federal government would play a major role in defining the content of citizenship; after, all the rights of “citizens of the United States,” not those of Alabama or Ohio, were the ones at issue. One could reasonably expect that the federal government would act both to define the rights of its citizens and to defend them. On the other hand, the phrase “no state shall make or enforce any law” seemed to indicate that the actual definition of rights was in fact to be left to the states themselves.

This ambiguity about whether the content of rights would be determined by the federal government or by the individual states meant that different groups of Americans would interpret the Fourteenth Amendment in divergent ways and that the Supreme Court would be called on to adjudicate these disputes. Given the intensity of the disagreements, the stakes of the outcome, and the pressure brought to bear on the Court, it is perhaps not surprising that the Supreme Court did not speak with one voice on the proper division of power between the states and the central government.

The clearest instance of the federal government taking it upon itself to define rights conferred by the Fourteenth Amendment has to do with corporate law, and in particular the steps taken by the Supreme Court to free private corporations from public regulation, much of which had been done by individual states across the first seven decades of the republic. In the postbellum years, the Supreme Court elaborated a laissez-faire constitutionalism based on its reading of the Fourteenth Amendment. At the core of this new jurisprudence was “liberty of contract,” which meant that individuals possessed the freedom to enter any commercial or employment transaction unencumbered by government restraint or regulation. Because the Supreme Court deemed corporations to be persons in the eyes of the law, corporations themselves possessed this liberty of contract and were protected by the Fourteenth Amendment in the exercise of this liberty.[15]

This was a clear case of the Supreme Court using the authority of the Fourteenth Amendment to define a new right and to require all governments—the central government, and the governments of states, counties, and municipalities—to respect it. Delineating such a freedom gave private corporations a scope of action and autonomy that they had not previously had, spurring their growth and accelerating America’s industrialization. New powers that the central government had assumed as a result of the Fourteenth Amendment—namely the power to confer liberty of contract on persons and to protect this liberty from encroachment by government at every level—gave capitalist development a major boost. If one wants to locate a transformation in Civil War and Reconstruction developments, here it is.[16]

But this is far from the whole postbellum story. States themselves were also growing and acting vigorously at this time. They passed thousands of laws to challenge laissez-faire and the autonomy of corporations. Public health and safety became abiding concerns during the late nineteenth century, as states sought to improve living conditions in cities and to stamp out drinking, gambling, pornography, and other vices. In the 1880s and 1890s, states established a wide variety of institutions, ranging from labor bureaus, fish commissions, and liquor licensing agencies to universities, charities, hospitals, insane asylums, and health boards—few of which had existed prior to the Civil War.[17]

The Supreme Court legitimated this late-nineteenth-century surge in the scope and vigor of state governance by reinvigorating the notion that states possessed broad powers to act for the general welfare. This was the essence of the police power doctrine elaborated in the early nineteenth century to give states extraordinary governing authority. The Supreme Court had determined that the Fourteenth Amendment did not preclude states from exercising this power; nor was the Supreme Court willing to declare at this time that the Fourteenth Amendment had bound states to the Bill of Rights and thus to require the former (states) to write laws in consonance with the latter (the Bill of Rights). Here we see a demonstration of the Court deferring to the states and granting them permission to define the content of the rights and the duties expected of citizens. Even those Supreme Court justices thought to be the architects of laissez-faire constitutionalism wrote opinions in the 1880s that protected the police power of the states. As laissez-faire’s key architect, Associate Justice Stephen Field, argued in 1885, “neither the Fourteenth Amendment, broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of a State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity.”[18] A majority of Court members supported Fields’s position and worked to restore the boundary between federal and state power that the Civil War was thought to have obliterated. In the process, the Court did a great deal to rehabilitate the authority exercised by the states.[19]

This rehabilitative work helps us understand what we have long known and yet have had difficulty assimilating into our analysis of this history of government power in America: the explosion in the late nineteenth century of state legislation regulating race, sexuality, and morality in a society supposedly consecrated to laissez-faire and individual freedom. From the late nineteenth century through the first quarter of the twentieth, the supposed high point of America’s laissez-faire regime, many states exercised sweeping forms of control over individual behavior: the prohibition of the sale and consumption of alcohol, the forced separation of the “colored” and white populations, and the banning of racial intermarriage, polygamy, prostitution, and contraception. While the federal government participated in this regulatory regime, the power to legislate moral life remained largely within the province of the states. And the Supreme Court repeatedly upheld the states in their rights to exercise power in this way.[20]

The personal liberty granted to corporations under the Fourteenth Amendment was in many instances not granted to blacks or women in matters of race, marriage, and reproduction. Many white men did not have access to this liberty either, as a Denver newspaper editor discovered in 1907 when the Supreme Court upheld his conviction in state court for his editorials criticizing the Colorado judiciary. The Supreme Court was not yet willing to hold individual states accountable to the First Amendment. The new birth of freedom promised by the Civil War had not quite materialized.[21]

The course of action charted by the Supreme Court in the postbellum years was not set in stone. Beginning in the 1920s, the court would move in a different direction, declaring that the federal government did have the power to define the rights of citizenship and that states were obligated to respect those rights. This movement would eventually culminate in the Warren Court’s use of the Fourteenth Amendment to impose the entire Bill of Rights on the states and destroy the constitutional basis for Jim Crow. The story of how the federal government finally broke the power of the states is too long and complicated to narrate here.  But its import can be succinctly stated: namely, that the transformation in governance that many scholars associate with the Civil War actually came a hundred years later, in the 1960s, not the 1860s. It emerged from the Second Reconstruction, not the first.[22]

The slowness and unevenness of the postbellum effort to consolidate authority in the federal government suggests the need to rethink our conception of nineteenth-century state-building and perhaps to scrutinize assumptions about the transformative effects of the Civil War.[23] The Civil War did of course unleash profound hopes and movements for change, often of a revolutionary character. But the forces of counterrevolution were formidable too. So, too, was the influence of an eighteenth-century constitutional settlement that looked with suspicion on efforts to increase the reach of the federal government. The Fourteenth Amendment proved too weak an instrument to allow federal court justices to confront that settlement head on. In light of these circumstances, we might want to consider the possibility that the late-nineteenth-century state was more the product of compromise than transformation, as much tied to the eighteenth-century constitutional settlement as freed from it. This interpretive orientation should not be allowed to revive the notion that the nineteenth-century state was weak or inconsequential. To the contrary, it should impel us to ask how nineteenth-century state-builders sought to overcome the constraints they faced, to inquire into how they improvised to achieve their goals, and to ask how well their favored strategies of governance fared. In the process of exploring these questions, we may well relinquish our commitment to seeing the Civil War era as a defining moment of state-building. But we may also gain a deeper appreciation for the dynamics that both animated and constrained the American state across the whole of the nineteenth century, in war and in peace.

 

GARY GERSTLE is Paul Mellon Professor of American History at the University of Cambridge. His most recent book, Liberty and Coercion: The Paradox of American Government from the Founding to the Present (Princeton University Press, 2015), won the 2016 Ellis W. Hawley Prize from the Organization of American Historians.


Notes

[1] Richard Bensel, Yankee Leviathan: The Origins of Central State Authority in America (New York: Cambridge University Press, 1995); Bruce Ackerman, We, the People, vol. 2 of 3: Transformations (Cambridge, Mass.: Harvard University Press, 1998).
[2] For an important exception to this trend, see Kimberley S. Johnson, Governing the American State: Congress and the New Federalism, 1877–1929 (Princeton, N.J.: Princeton University Press, 2007).
[3] Gary Gerstle, Liberty and Coercion: The Paradox of American Government from the Founding to the Present (Princeton, N.J.: Princeton University Press, 2015), introduction, chap. 1.
[4] William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996), 46, 80; J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, N.J.: Princeton University Press, 1975); Quentin Skinner, The Foundations of Modern Political Thought, 2 vols. (New York: Cambridge University Press, 1978); Gordon S. Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969); Maurizio Viroli, Foundations of Modern Political Thought: Machiavelli (New York: Oxford University Press, 1998). The literature on republicanism in America is vast. For reviews and syntheses, see Robert Shalhope, “Toward a Republican Synthesis: The Emergence of an Understanding of Republicanism in Early American Historiography,” William and Mary Quarterly 29, no. 1 (1972): 49–80; Daniel T. Rodgers, “Republicanism: The Career of a Concept,” Journal of American History 79, no. 1 (1992): 11–38. See also Andreas Kalyvas and Ira Katznelson, Liberal Beginnings: Making a Republic for the Moderns (New York: Cambridge University Press, 2008).
[5] Novak, People’s Welfare, passim; Gerstle, Liberty and Coercion, chap. 2; Markus Dirk Dubber, The Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005); Peter Onuf, The Origins of the Federal Republic: Jurisdictional Controversies in the United States, 1775–1787 (Philadelphia: University of Pennsylvania Press, 1983); Douglas Bradburn, The Citizenship Revolution: Politics and the Creation of the American Union, 1774–1804 (Charlottesville: University of Virginia Press, 2009); Forrest McDonald, States’ Rights and the Union: Imperium in Imperio, 1776–1876 (Lawrence: University Press of Kansas, 2000).
[6] The most powerful statement of this point of view is William J. Novak, “The Myth of the Weak State,” American Historical Review 113 (June 2008): 752–72. See also the June 2010 AHR Exchange, in volume 115 of the journal, between Novak and Gary Gerstle, Julia Adams, and John Fabian Witt, with a response by Novak: Witt, “Law and War in American History,” 768–78; Gerstle, “A State Both Strong and Weak,” 779–85; Adams, “The Puzzle of the American State . . . and Its Historians,” 786–91; and Novak, “Long Live the Myth of the Weak State? A Response to Adams, Gerstle, and Witt, 792–99.
[7] See, for example, Patrick Griffin, American Leviathan: Empire, Nation, and Revolutionary Frontier (New York: Hill & Wang, 2007); and Max M. Edling, Hercules in the Cradle: War, Money, and the American State, 1783–1867 (Chicago: University of Chicago Press, 2014).
[8] On the importance of reintegrating the states into the conversation about political development, see Martha Derthick, Keeping the Compound Republic: Essays on American Federalism (Washington, D.C.: Brookings Institution Press, 2001).
[9] “First Inaugural Address of Abraham Lincoln,” March 4, 1861, Yale Law School, The Avalon Project, http://avalon.law.yale.edu/19th_century/lincoln1.asp.  Accessed January 12, 2017.
[10] Eric Foner, The Fiery Trial: Abraham Lincoln and American Slavery (New York: Norton, 2010); Laura F. Edwards, A Legal History of the Civil War and Reconstruction (New York: Cambridge University Press, 2015).
[11] Foner, Fiery Trial, chaps. 5–7; Edwards, Legal History of the Civil War and Reconstruction, 20, 74, 78, 92–93, passim.
[12] The best study of use of war powers during Civil War and Reconstruction is Gregory P. Downs, After Appomattox: Military Occupation and the Ends of War (Cambridge, MA: Cambridge University Press, 2015).
[13] Foner, Fiery Trial; Edwards, Legal History of the Civil War and Reconstruction.
[14] On the Fourteenth Amendment, see Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, N.C.: Duke University Press, 1986); Chester J. Antieau, The Original Understanding of the Fourteenth Amendment (Tucson, AZ: Mid-America Press, 1981); Judith A. Baer, Equality under the Constitution: Reclaiming the Fourteenth Amendment (Ithaca, N.Y.: Cornell University Press, 1983); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, Mass.: Harvard University Press, 1977); Edwards, Legal History of the Civil War and Reconstruction; Bryan Wildenthal, “The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment,” Ohio State Law Journal 61 (2000): 1051–74; Bryan Wildenthal, “Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67,” Ohio State Law Journal 68 (2007): 1509–626; George C. Thomas III, “The Riddle of the Fourteenth Amendment: A Reply to Professor Wildenthal,” Ohio State Law Journal 68 (2007): 1626–58.
[15] Edward S. Corwin, Liberty against Government (Baton Rouge: Louisiana State University Press, 1948); Sidney Fine, Laissez-Faire and the General Welfare State: A Study in Conflict in American Thought, 1865–1901 (Ann Arbor: University of Michigan Press, 1956); Benjamin R. Twiss, Lawyers and the Constitution: How Laissez-Faire Came to the Supreme Court (Princeton, N.J.: Princeton University Press, 1942); Edward S. Corwin, “The Supreme Court and the Fourteenth Amendment,” Michigan Law Review 7 (1908–9): 643–772; Charles W. McCurdy, “Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863–1897,” Journal of American History 61 (March 1975): 970–1005; Christopher Tomlins, “To Improve the State and Condition of Man: The Power to Police and the History of American Governance,” Buffalo Law Review 53 (2005–6): 1215–71; Howard J. Graham, Everyman’s Constitution: Historical Essays on the Fourteenth Amendment, the “Conspiracy Theory,” and American Constitutionalism (Madison: University of Wisconsin Press, 1968); Morton Keller, Affairs of State: Public Life in Late Nineteenth-Century America (Cambridge, Mass.: Harvard University Press, 1977); Richard Franklin Bensel, The Political Economy of American Industrialization, 1877–1900 (New York: Cambridge University Press, 2000).
[16] Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877 (New York: Harper & Row, 1988); Bensel, Political Economy of American Industrialization; Gerstle, Liberty and Coercion, chaps. 2, 7, 9; Jack Beatty, Age of Betrayal: The Triumph of Money in America, 1865–1900 (New York: Knopf, 2007); Sven Beckert, Empire of Cotton: A Global History (New York: Knopf, 2009), chap. 10; William E. Forbath, Law and the Shaping of the American Labor Movement (Cambridge, Mass.: Harvard University Press, 1991).
[17] William R. Brock, Investigation and Responsibility: Public Responsibility in the United States, 1865–1900 (New York: Cambridge University Press, 1984); Melvin I. Urosky, “Myth and Reality: The Supreme Court and the Protective Legislation in the Progressive Era,” Yearbook—Supreme Court Historical Society (1983): 53–72; Melvyn I. Urosky, “State Courts and Protective Legislation during the Progressive Era: A Reevaluation,” Journal of American History 72 (June 1985): 63–91; Johnson, Governing the American State; Noam Maggor, “To Coddle and Caress These Great Capitalists: Eastern Money, Frontier Populism, and the Politics of Market Integration in the American West,” American Historical Review 122 (February 2017); Gerstle, Liberty and Coercion, chap. 2.
[18] Opinion written for Barbier v. Connolly, 113 U.S. 27 (1885). For a valuable perspective on police power, see Christopher Tomlins, “To Improve the State and Condition of Man: The Power of the Police and the History of American Governance,” Buffalo Law Review 53 (2005–6): 1215–71.
[19] For contemporary opinions on the rising influence of the police power doctrine in the late nineteenth and early twentieth centuries, see Ernst Freund, The Police Power: Public Policy and Constitutional Rights (Chicago: Callaghan & Company, 1904); A. H. Robbins, “Taking the Lid Off the Police Power,” 75 Central Law Journal 314 (1912), 314–15; Charles Warren, “A Bulwark to the State Police Power—the United States Supreme Court,” Columbia Law Review 13 (December 1913): 667–95; George W. Wickersham, “The Police Power, a Product of the Rule of Reason,” Harvard Law Review 27 (February 1914): 297–316.
[20] Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2000); Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985); Laura Edwards, “Status without Rights: African Americans and the Tangled History of Law and Governance in the Nineteenth-Century South,” American Historical Review 112 (2007): 365–93; Rachel Moran, Interracial Intimacy: The Regulation of Race and Romance (Chicago: University of Chicago Press, 2001); Martha Hodes, White Women, Black Men: Illicit Sex in the Nineteenth-Century South (New Haven: Yale University Press, 1997); Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York: Oxford University Press, 2009); Barbara Young Welke, Law and the Borders of Belonging in the Long Nineteenth Century United States (New York: Cambridge University Press, 2010); Paul S. Boyer, Urban Masses and Moral Order in America, 1820–1920 (Cambridge, MA: Harvard University Press, 1978); Gaines M. Foster, Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1965–1920 (Chapel Hill: University of North Carolina Press, 2002).
[21] William E. Leuchtenberg, “The Birth of America’s Second Bill of Rights,” in The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995), 243.
[22] I tell this story in Liberty and Coercion, chap. 9.
[23] In her essay for this forum, “Birthright Citizenship and Reconstruction’s Unfinished Revolution,” Martha S. Jones suggests the need to subject claims regarding the transformative effects of the Fourteenth Amendment’s birthright citizenship clause to a similar kind of scrutiny.

One Reply to “The Civil War and State-Building: A Reconsideration”

  1. In “The Civil War and State-Building: A Reconsideration,” Gary Gerstle reminds us of the extent to which the Supreme Court limited powers the Civil War Amendments potentially gave the national government over the states. There is no doubt that it did. But we should not interpret that move solely as an effort to cling to an antebellum view of US federalism.

    The cases involving birth-right citizenship that I discussed in response to Martha Jones help illustrate this point. In those cases and in cases involving Chinese Exclusion as well as in cases involving Native Americans, the Court gave increased power to the national government. It extended that power in the Insular Cases.
    When early in 1898 the majority in WONG KIM ARK ruled that anyone born in territory subject US jurisdiction had birth-right citizenship, it did not know that by the end of the year the US would have acquired new territories with large populations of non-whites, considered by many in the US incapable of self-government. The view that they were incapable of self-government was reinforced by what many saw as the failed experiment of allowing African American suffrage. Nonetheless, given the ruling of WONG KIM ARK, so long as these new territories were considered completely subject to US jurisdiction, those born within them would get birth-right citizenship. In the Insular Cases, the Court solved this dilemma by relying on the metaphor of incorporation. The new territories were subject to US jurisdiction, but they were, the Court eventually ruled, not yet fully incorporated into the US. Thus, those born in these territories were US nationals but not full-fledged US citizens. (See the present case alluded to by Jones of TUAUA v. US, involving someone born in America Samoa.)

    The metaphor of incorporation was introduced by Justice White of Louisiana, a Catholic student of Roman law and its law of empire. The metaphor can help us understand what seems to be the paradox that White endorse increased national power at the same time that he strongly supported limitations on national power over both the states and business enterprises. After all, J.C. Calhoun would never have used White’s corporate metaphor to describe the nation. For Calhoun the United States WERE not even a nation. They were a confederation composed of sovereign states that established contractual relations, which any individual state could terminate. In other words, for Calhoun, the Union was a partnership, not a corporation. To be sure, during the era of Reconstruction, some did hold strongly to Calhoun’s view of states’ rights, quoting the slogan: “The Union as it was; the Constitution as it is.” But in “The Significance of the Frontier in American History,” Woodrow Wilson’s friend Frederick Jackson Turner enlists Calhoun for a new national spirit by citing Mississippi’s Lucius Quintus Cincinnatus Lamar at the dedication of new monument for the defender of states’ rights. Noting that Calhoun’s argument was correct for the original thirteen colonies, Lamar insists that the situation has changed. “In 1788 states were the creators of the Federal Government: in 1861 the Federal Government was the creator of the large majority of states.” Southerners who strongly opposed the use of national powers during Reconstruction could embrace the corporate metaphor as a way to assert their nationalism, while limiting, not the sovereign supremacy of the nation, but the governmental powers the nation had over the states, if not over the territories.

    The distinction between the sovereign national state and governmental powers was most influentially made by John W. Burgess, notorious for his racist—but, nonetheless, interesting–accounts of Reconstruction. (Du Bois acknowledged that Burgess’s account was “more than fair in law. . . subtract from [him] his belief that only white people can rule and he is in essential agreement with me.” Burgess, for instance, opposed the Spanish-American War and taking possession of the Insular Territories.) More important than Burgess for an understanding of a southern progressive’s view of state-building, however, is his rival political scientist Woodrow Wilson. For Wilson, as for his former classmate Thomas Dixon, Reconstruction was a happy fall. Although it led to abuses against the South, like the Civil War, it was motivated by the progressive sentiment of “union and nationality.” The redemption of southern states was not simply about a reassertion of states’ governmental powers; it was a sign that the national spirit had been redeemed with a corporate nation ready for “novel enterprises at the threshold of an unlooked for future,” such as “empire,” which “is an affair of strong government, and not of the nice and somewhat artificial poise of the delicate compromises of structure and authority of a mere federal partnership.” Similarly, White claimed that if the Insular Cases had not been decided the way they were, the US should not call itself a “nation.”

    The corporate metaphor employed by White and Wilson helps link their reaction to Reconstruction to early 20th-century progressivism. A widespread definition of a national state at the time was Burgess’s: “a particular portion of mankind viewed as an organized unit.” Self-government implied the ability to organize, and successful nation-states would be those who were the best organized. The corporate metaphor attracted Wilson and others because of the efficiency attributed to corporate modes of organization. (We find the same metaphor in Bellamy’s LOOKING BACKWARD). Early on, Wilson got attention for insisting on the importance of studying administrative law. In addition to raising questions about sovereignty and the division of state and national powers, the Civil War raised questions about how to govern effectively on the national but also on the state and local level. Many nationalistic Southerners readily admitted that Jefferson Davis had not been an effective administrator. They were also concerned with how the spoils system in both the carpetbagger South and the big cities of the North undercut efficient administration. Thus the importance of civil service reform, with both Great Britain and Bismarck’s newly unified Germany as models. What was needed, it was felt, was a class of professionally trained civil servants who would ensure that government was run as effectively as the best businesses. How this celebration of “communities of the professionally competent” to ensure effective governmental administration coincided with the rise of professional scientific racism is another link worth exploring.

    For me, Reconstruction’s influence on the progressive desire for efficient administration provides a perspective on the seeming agenda of the Trump “administration.” Superficially, Trump may seem to share the desire to bring business efficiency to government. But, as Wilson well knew, an emphasis on administration went hand-in-hand with the development of a “European-style” governmental bureaucracy. He was not afraid of that possibility because he believed that the racial character of the American people, which he thought was basically a mixture of Anglo-Saxon and Scotch-Irish, would guard against abuses. In a review of Bryce’s THE AMERICAN COMMONWEALTH Wilson insisted: “America has a democracy because she is free; she is not free because she has a democracy.” (Once again, Thomas Dixon expresses a similar sentiment.) For Trump and Stephen Bannon, unlike for the progressive Wilson, the country’s racial character no longer protects it from the abuses of a governmental bureaucracy. On the contrary, for Bannon, and likely for Trump, that bureaucracy now serves the interests of those who threaten the nation’s “true” racial character. Thus, Bannon argues, the bureaucracy needs to be “deconstructed.” We are witnessing the effect of that “deconstruction” on efficient governmental administration.

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