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American Journal of Legal History, 2016, 56, 326–358
doi: 10.1093/ajlh/njw007
Advance Access Publication Date: 12 August 2016
Article
Federal Coercion and National Constitutional
Identity in the United States 1776-1861
Pekka Pohjankoski*
ABSTRACT
This article examines the development of the federal coercion power of the U.S. government during the period from the Declaration of Independence to the Civil War. Although
unhappy with the states’ defiance of federal requisitions, the Founders agreed at the
Constitutional Convention that the national government should not have the power to coerce individual states militarily to force them into compliance with federal law. Instead, a
federal judiciary was created to uphold the supremacy of the Constitution. As part of the
new constitutional makeup, the federal government now had the power to coerce individuals, rendering the coercion of states unnecessary. However, in the pre-Civil War era, federal law was frequently disregarded by certain states. The question hence became whether
the federal government could de facto coerce states by coercing individuals. These debates
intensified during the South Carolina Nullification Crisis, and culminated on the eve of
the Civil War, as the southern states declared their intent to secede from the Union.
These multiple instances of state defiance and the eventual use of federal coercive force
consolidated the new constitutional arrangement. The emergence of a distinctly national
constitutional identity thus paralleled the evolution of the federal power of coercion.
I . I N T R O D UC T I O N : TH E E V O L UTI O N O F F ED E R A L C O E R C I O N
“Must a government, of necessity, be too strong for the liberties of its own people, or
too weak to maintain its own existence?”1 asked Abraham Lincoln following the
* Pekka Pohjankoski, LL.B., LL.M. (Univ. of Helsinki), LL.M. (Harvard Law School), Legal Secretary (référendaire) at the Court of Justice of the European Union, [email protected]. The author wishes
to thank Michael J. Klarman, Kirkland & Ellis Professor at Harvard Law School, for his valuable suggestions and
helpful remarks, as well as the anonymous reviewers provided by American Journal of Legal History.
1 Message to Congress in Special Session, July 4, 1861, in 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN 421,
426 (Roy P. Basler ed., 1953-55) [hereinafter COLLECTED WORKS OF LINCOLN] (emphasis in original.)
Lincoln’s words are reminiscent of John Locke, whose political philosophy is instrumental for American
constitutional thought. “§. 202. Where-ever law ends, tyranny begins, if the law be transgressed to another’s
harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he
has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a
magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the
right of another.” See JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 103 (C. B. Macpherson ed., 1980).
William Freehling simplifies Locke’s social contract thus: “Locke assumed that governmental power became legitimate when the community consented to its exercise. Coercive force could not be considered
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Federal Coercion and National Constitutional Identity in the United States 1776-1861
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outbreak of the American Civil War. The Republican President was faced with a constitutional dilemma as the states of the Deep South, one after another, seceded from
the Union: could the federal government coerce them not to break away?
This issue, the coercive power afforded to a union over its constituent polities, is
“one of the most difficult problems of federal politics.”2 In a system of government
where federal law, within its sphere, is supreme, the question of its enforcement is
fundamentally important. Indeed, when a constituent member of the federal order
refuses to comply with the laws of that system, the federal government must have
means of enforcement at its disposition–or risk becoming irrelevant. However, securing the efficiency of federal law by using force is a task fraught with difficulty.3
Federal coercion refers to the power of the national government to ensure that its
constituent states comply with their obligations under federal law. The ability of the
federal government to coerce its subjects appears as a theme in multiple debates during the period from the American Revolution to the Civil War (1776-1861). These
include discussions on the coercion of states, the enforcement of federal law, notably
in the context of tax collection, the suppression of domestic insurrections, as well as
the prevention of secession from the federal system. The Continental Congress rejected the early proposition that the federal government should, when necessary, use
military force against the states to ensure compliance with federal requisitions. As the
Constitution invested the federal government with powers to operate directly on individuals, the federal government effectively assumed a power to safeguard the enforcement of federal law by coercing individuals. Thus the paradigm of coercion
shifted: the subjects of the federal government no longer included solely the several
states, but also the people of the whole United States.
The adoption of the Constitution did not settle the debate concerning the federal
government’s power to coerce its subjects, however. The conditions for the federal executive’s power to use the military to suppress domestic insurrections had to be established. Following opposition to federal court rulings in many states, the federal executive
also had to craft appropriate responses to support the decisions of the judiciary. These
events in various states highlight the ability of the federal government to exert, in fact,
coercion on those states. Indeed, the federal executive did not hesitate to threaten to
use federal force against individual state actors, even when they acted in their official capacity. While in the Early Republic federal coercion served to consolidate incrementally
the integrity of the federal system, on the eve of the Civil War it assumed a new dimension as federal force was deployed in response to the secession of Southern states. As
Lincoln deliberated the question of coercive power before Congress in 1861, he encapsulated the paradox faced by any federal government striving to preserve the liberty of
its subjects, while upholding the federal compact and its laws effectively.
tyrannical when it was used to enforce the will of the governed.” WILLIAM W. FREEHLING, PRELUDE TO CIVIL
WAR: THE NULLIFICATION CONTROVERSY IN SOUTH CAROLINA 1816-1836 160 (1965). See generally GEORGE
M. STEPHENS, LOCKE, JEFFERSON AND THE JUSTICES: FOUNDATIONS AND FAILURES OF THE US GOVERNMENT
(2002).
2 Arthur N. Holcombe, The Coercion of States in a Federal System, in FEDERALISM: MATURE AND EMERGENT 137
(Arthur W. MacMahon ed., 1955).
3 On the relationship of coercive force and the enforcement of legal rules, see, e.g. HANS KELSEN, PURE
THEORY OF LAW 33-37 (1967); Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1613 (1986).
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This article suggests that the evolution of the federal coercion power parallels
the emergence of a distinctly national constitutional identity of the United States.4
The various debates on federal coercion demonstrate that the nature of the new federal government, operating directly on individuals, rendered the distinction between
coercing states and coercing individuals gradually redundant. Meanwhile, federal coercion remained a necessary, if implicit, component of the effective functioning of
the national government. However, the perception of the federal government as a national actor with powers over the people did not emerge overnight. The mechanisms
to secure the enforcement of federal law only became established over time through
the incremental use of federal coercion, including during the Civil War. Thus the
idea of federal coercive authority evolved in parallel with the perceived nature of the
federal government.
The first part of this article presents the debate on the nature of federal coercion
during the Confederation and at the Founding; the second part deals with the preCivil War era. Specific events to which reference is made include notably the
Revolutionary War, the Constitutional Convention, the Whiskey Rebellion, and the
federal government’s reaction to Pennsylvania’s defiance of the Supreme Court in
United States v. Peters,5 as well as other decisions of the federal judiciary that met
with state opposition. Subsequently, the impact of the South Carolina Nullification
Crisis and the outbreak of the Civil War on the development of federal coercion are
considered. These momentous historical events reveal a continuing discussion as to
the federal power to coerce and its role under the Articles of Confederation and the
Constitution. The article concludes by reflecting on these developments as well as
on the perception of federal coercion after the Civil War.
I I . F E D ER A L CO ER C IO N D U R I N G TH E C O N F ED E R A T I O N A N D A T
T HE F OU N D IN G
1 Need for Federal Coercion: Articles of Confederation and the Inadequacy
of Congressional Requisitions
Following the Declaration of Independence in 1776, the 13 original American states
set up a continental union, governed by the Articles of Confederation. The constituent states of this “firm league of friendship”6 retained the traditional attributes of sovereignty,7 the Continental Congress resembling “an international assembly of
4 “National constitutional identity” refers here to the perception of the United States as one nation under
the Constitution. On the various discourses on American “national identity,” see, e.g. Kenneth L. Karst,
Paths to Belonging: The Constitution and Cultural Identity, 64 N.C. L. REV. 303, 364 (1986) (emergence of
national identity in 19th Century comprehended roughly values of today’s American civic culture); Mark
Tushnet, The Hardest Question of Constitutional Law, 81 MINN. L. REV. 1, 26 (1996) (arguing American national identity is constituted by adherence to constitutional principles).
5 9 U.S. 115 (1809).
6 ARTICLES OF CONFEDERATION of 1781 (hereafter also “Articles”). Art. III. All the quotations hereafter follow
the spelling of the original source.
7 See Art. II: “Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction
and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” See also MERRILL JENSEN, THE ARTICLES OF CONFEDERATION: AN INTERPRETATION OF THE SOCIALCONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION 1774-1781, at 161-76 (1940).
Federal Coercion and National Constitutional Identity in the United States 1776-1861
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ambassadors” with no formal power to make law binding on state courts.8 Moreover,
the Continental Congress had no power of taxation over individuals, and it lacked
the direct authority to raise armies. In contrast, it could “requisition” finances and
troops for the needs of the nation from individual states.9
However, the power of requisition was fundamentally deficient. While the requisitions were “binding” according to the Articles, in reality there was widespread noncompliance by the states.10 The inadequacy of the Continental Congress’s powers
was exacerbated by the financial and military demands of the Revolutionary War.11
Due to Congress’s dependency on the states, the provision of military supplies was
slow and inefficient. Meanwhile, their insufficiency was of great concern because of
the ongoing war effort.12
The “precarious and impotent condition” of the army led many observers to conclude that Congress should have more than just a recommendatory power over the
states.13 For example, the New York legislature went as far as to approve a resolution
according to which Congress should be able to “exercise every Power which they
may deem necessary for an effectual Prosecution of the War,” and recommending
that George Washington, then Commander-in-Chief of the Continental Army, have
the authority to coerce, with help of the military, “any State [which] is deficient in
furnishing the Quota of Men, Money, Provisions or other Supplies . . . to furnish its
deficiency.”14 Moreover, in late 1780, a number of states submitted similar resolutions to Congress.15 New York’s Governor, George Clinton, suggested that the
power to compel states to perform their duties under the Articles was inherent in
Congress’s powers to fight the war.16
Against this backdrop, in 1781 the Continental Congress appointed a committee,
which included the then 29-year-old delegate James Madison, to prepare a plan
8 Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1447 (1987), where the author also
considers the word “Congress” itself to refer to inter-sovereign congregations such as the Congress of
Vienna (although that only took place in 1814-1815), and that “no state legislature in the 1770’s and
1780’s was labeled a ‘Congress’ by its state constitution.”
9 See Arts. VIII and IX.
10 See, e.g. MAX M. EDLING, A HERCULES IN THE CRADLE: WAR, MONEY, AND THE AMERICAN STATE, 1783-1867,
at 27-30 (2014); Amar, supra note 8, at 144748.
11 The war spanned from 1775 to 1783. See generally 1 RICHARD S. RANDALL, AMERICAN CONSTITUTIONAL
DEVELOPMENT: THE POWERS OF GOVERNMENT 16-27 (2002).
12 JACK N. RAKOVE, THE BEGINNINGS OF NATIONAL POLITICS: AN INTERPRETIVE HISTORY OF THE CONTINENTAL
CONGRESS 277 (1979).
13 Id. at 279-80.
14 James Duane to the Governor of New York (George Clinton) (Nov. 14, 1780), in 5 LETTERS OF MEMBERS
OF THE CONTINENTAL CONGRESS 445-46 (Edmond C. Burnett ed., 1921-36) at n. 6: “Resolved . . . that
whenever it shall appear to [N.Y. delegates in Congress] that any State is deficient in furnishing the
Quota of Men, Money, Provisions or other Supplies, required of such State, that Congress direct the
Commander-in-Chief, without delay, to march the Army, or such Part of it as may be requisite, into such
State; and by Military Force, compel it to furnish its deficiency.”
15 RAKOVE, supra note 12, at 281.
16 Clinton proposed that Congress’s extensive powers over war, finance, and diplomacy meant that “these
were Powers that necessarily existed in Congress, and we cannot suppose that they should want the
Power of compelling the several States to their Duty and thereby enabling the Confederacy to expel the
common Enemy.” George Clinton to Pres. Huntington, (5 Feb. 1781), in 2 PAPERS OF THE CONTINENTAL
CONGRESS, 1774–1789, at 344-59 (quotation at 358) (John P. Butler ed., 1978), quoted in RAKOVE, supra
note 12, at 281.
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investing the national government with “full and explicit powers for effectually carrying into execution in the several states all acts or resolutions passed agreeably to the
Articles of Confederation.”17 Foreshadowing the Committee’s proposals, Madison
explained in his letter to Thomas Jefferson how the Continental Congress could exercise its coercive power:
As long as there is a regular army on foot a small detachment from it, acting
under Civil authority, would at any time render a voluntary contribution of
supplies due from a State, an eligible alternative. But there is a still more easy
and efficacious mode. The situation of most of the States is such, that two or
three vessels of force employed against their trade will make it their interest to
yield prompt obidience [sic] to all just requisitions on them. With respect to
those States that have little or no foreign trade of their own it is provided that
all inland trade with such states as supply them with foreign merchandize [sic]
may be interdicted and the concurrence of the latter may be enforced in case
of refusal by operations on their foreign trade.18
As the war effort progressed, frustration over insufficient military supplies grew.
Referring to the Committee’s work, Joseph Jones, a Virginian delegate at the
Continental Congress, also wrote to Jefferson:
It appears to me indispensably necessary for the general welfare in time of war
that the Congress should be vested with a controuling [sic] power over the
States sufficient to compel obedience to requisitions for Men and
Money . . . Without a coercive power . . . all future wars as the present has done
must languish for want of proper authority to call forth the resources of the
States.19
In its report, the Committee of 1781 finally proposed that the Continental Congress
should have the power to “authorize to employ the force of the United States as well
by sea as by land to compel [a State or States recalcitrant in their observation of the
Articles] to fulfill their federal engagements . . .”20 The Committee thought that a
federal enforcement power was implicit in the Articles, but that a delinquent state
might seek to use the absence of an explicit power as a pretext to avoid federal enforcement.21 Thus, the Committee’s proposal to render the power of coercion explicit was not meant to invest the Continental Congress with any new powers, but it
17 Proceedings of the Continental Cong. (March 6, 1781), in 19 JOURNALS OF THE CONTINENTAL CONGRESS
233, 236 (Gaillard Hunt ed., 1912).
18 Madison to Jefferson (Apr. 16, 1781), in 3 THE PAPERS OF JAMES MADISON DIGITAL EDITION,
CONGRESSIONAL SERIES 71, 72 (J. C. A. Stagg ed., 2010) [hereinafter PAPERS OF JAMES MADISON].
19 From Joseph Jones to Thomas Jefferson, 16 April 1781, in 5 THE PAPERS OF THOMAS JEFFERSON, 25
FEBRUARY 1781 – 20 MAY 1781, at 469 (Julian P. Boyd ed., 1952) [hereinafter PAPERS OF THOMAS
JEFFERSON].
20 Proceedings of the Cont’l Cong. (May 2, 1781), in 20 JOURNALS OF THE CONTINENTAL CONGRESS 465, 470
(Gaillard Hunt ed., 1912).
21 Id. at 469-70.
Federal Coercion and National Constitutional Identity in the United States 1776-1861
331
was intended simply as a “declaratory amendment affirming that the power already
existed by implication.”22
Although physical coercion of states might have seemed like a straightforward solution to achieve compliance under the pressures of war, the Continental Congress
nevertheless rejected the Committee’s proposal.23 Doubts were expressed that states
would not accept such a proposition coming from Congress. Moreover, the success
of implementing such amendments also seemed precarious, as even a small minority
of delegates would be sufficient to block their adoption.24 While many may have considered some coercive powers inherent in the system of the Articles, the
Committee’s declaratory proposal was primarily rejected because its implementation
was seen as problematic.25 In fact, even those who were in favor of vesting Congress
with coercive powers appeared to recognize some principled objections to the coercion of states and thought that no such powers should be permanent.26 Some may
have hoped that if Congress had extensive powers to deploy coercive force against
recalcitrant states, those powers would constitute a sufficient deterrent so that
Congress would never have to resort to using actual force.27
Be that as it may, the problem of insufficient requisitions persisted.28 For example,
during Colonial rule, the Royal Navy had protected American vessels against attacks
from the “Barbary Coast” of North Africa; following the Revolution, the independent
nation would have to look after its own ships in the Mediterranean.29 Engaged in the
war against pirates, John Jay, then Secretary of Foreign Affairs, expressed to
Continental Congress his concerns regarding the insufficiency of federal funds obtained from states through requisitions. Jay also doubted the ability of the United
States to borrow money in Europe because some of the former loans had not been
paid back to France, and that the nation was struggling to even pay interest on its existing loans.30 To the extent that Congress was unable to compel states to comply
with treaties made under international law, foreign nations were hesitant to cooperate with the United States on the international level.31 However, he indicated expressly that federal coercion was not a possible course of action to raise federal
22
23
24
25
26
27
28
29
30
31
IRVING BRANT, THE FOURTH PRESIDENT: A LIFE OF JAMES MADISON 64 (1970).
RAKOVE, supra note 12, at 290-91. See also BRANT, supra note 22, at 65.
RAKOVE, supra note 12, at 291-92.
Id. at 295-96
To Thomas Jefferson from Joseph Jones, 16 April 1781, in PAPERS OF THOMAS JEFFERSON, supra note 19, at
471 (coercive force against states “is certainly a transcendent power, never to be used but in cases of absolute necessity and extremity”).
Id. at 471 (“The acknowledgement however of such a power in Congress might possibly supercede the
use of it as it would prove a weight impelling the States to action.”).
A Philadelphia merchant and political economist wrote that “if the execution of any act or order of the supreme authority shall be opposed by force in any of the states, which God forbid! it shall be lawful for
Congress to send into such state a sufficient force to suppress it.” Pelatiah Webster, A DISSERTATION ON
THE POLITICAL UNION AND CONSTITUTION OF THE THIRTEEN UNITED STATES OF NORTH AMERICA 42 (1783).
See also Edling, supra note 10, at 27.
See BRENDAN SIMMS, EUROPE: THE STRUGGLE FOR SUPREMACY, FROM 1453 TO THE PRESENT 136 (2013);
Gerard W. Gawalt, America and the Barbary Pirates: An International Battle Against an Unconventional Foe,
THE LIBR. OF CONG.: AMERICAN MEMORY (Mar. 2, 2015), http://memory.loc.gov/ammem/ collections/jef
ferson_papers/mtjprece.html.
3 THE CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 196, 198 (Henry P. Johnston ed., 1890-93).
ALFRED H. KELLY ET AL., THE AMERICAN CONSTITUTION: ITS ORIGINS AND DEVELOPMENT 83 (7th ed. 1991).
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American Journal of Legal History
funds. Reluctant to borrow more money from European lenders, he proposed that
the national government should instead let the states “feel the evils resulting from
the war,” which would induce them to provide funds to the national government.32
Others, however, thought that some form of coercion was necessary. While
Thomas Jefferson, at the time Ambassador to France, also lamented the emptiness of
the Confederation’s coffers, he considered that a “natural right of coercion” existed.33
He wrote to James Monroe: “There never will be money in the treasury till the confederacy shews it’s [sic] teeth. The states must see the rod; perhaps it must be felt by
some one of them. . . . Every rational citizen must wish to see an effective instrument
of coercion.”34 In fact, much like the Committee of 1781 had done, Jefferson also
thought that the Continental Congress had an implicit power to coerce states:
It has been so often said, as to be generally believed, that Congress have no
power by the confederation to enforce any thing, e.g. contributions of money.
It was not necessary to give them that power expressly; they have it by the law
of nature. When two nations make a compact, there results to each a power of
compelling the other to execute it.35
Nevertheless, Jefferson was not a hawkish advocate of federal coercion. On another
occasion he expressed the view that “some peaceable means should be contrived for
the federal head to enforce compliance on the part of the states,”36 which appears
consistent with Jefferson’s idea of the union as one based on “the consent of equals”
and “predicated on the absence of coercion or prior connection.”37 Yet, he seems to
have been ambivalent over resolving the question of state noncompliance peaceably,
while clearly concerned about the inefficacy of the requisitions and their nonenforcement.38
The insufficiency of the federal requisitions is partially explained by the continuous decline in tax revenue that the states managed to collect throughout the 1780s.39
In response to the decreasing revenues, tax collection was enforced in many states
32 3 THE CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY, supra note 30, at 199:
“[A]s the people . . . will never provide for the public expenses, unless when moved thereto by constitutional coercion, or by the dictates of reason, or by their feelings; and as the first of these motives is here
out of the question, your Secretary thinks it probable that the States, on being applied to, will be more
disposed to supply money to purchase these treaties of peace while they feel the evils resulting from the
war, than they will to supply money to repay borrowed sums when all their fears and dangers from Sallee
rovers, Algerine corsairs, and the pirates of Tunis and Tripoli are vanished and gone.”
33 See Brian Steele, Thomas Jefferson, Coercion, and the Limits of Harmonious Union, 74 J. S. HIST. 823, 833
(2008).
34 From Thomas Jefferson to James Monroe, 11 August 1786, in 10 THE PAPERS OF THOMAS JEFFERSON 225
(Julian P. Boyd ed., 1955).
35 From Thomas Jefferson to Edward Carrington, 4 August 1787, in 11 THE PAPERS OF THOMAS JEFFERSON
678, (Julian P. Boyd ed., 1955).
36 From Thomas Jefferson to George Wythe, with Enclosure, 16 September 1787, in 12 THE PAPERS OF
THOMAS JEFFERSON 128-29, (Julian P. Boyd ed., 1955).
37 PETER S. ONUF, JEFFERSON’S EMPIRE: THE LANGUAGE OF AMERICAN NATIONHOOD 138 (2000).
38 Steele, supra note 33, at 828.
39 MAX M. EDLING, A REVOLUTION IN FAVOR OF GOVERNMENT: ORIGINS OF THE U.S. CONSTITUTION AND THE
MAKING OF THE AMERICAN STATE 155-156 (2003).
Federal Coercion and National Constitutional Identity in the United States 1776-1861
333
with increasing harshness. In Massachusetts, protests by farmers and debtors seeking
relief from taxes and economic pressures culminated in Shays’ Rebellion in 17861787.40 Governor James Bowdoin of Massachusetts raised a privately funded military
force to suppress the uprising.41 The repercussions from this use of force to suppress
rebellious behavior were felt at the national level. The Constitution of Massachusetts
was regarded as particularly well balanced and, therefore, if revolts could occur there,
the possibility of larger-scale uprising could not be ruled out elsewhere.42
While Shays’ Rebellion illustrated the dangers of excessive democracy and anarchy, the use of coercive measures to suppress public protest raised concerns of government tyranny.43 At the same time, the deficiencies of the federal requisitions
called for a more powerful national government. As Alexander Hamilton summarized
the status quo: “a nation, without a national government, is an awful spectacle.”44
Against this backdrop, both the structural deficiencies in the system established by
the Articles of Confederation as well as the use of coercive force by government featured on the agenda of the convention which was convened in Philadelphia in 1787
to “render the Constitution of the federal government adequate to the exigencies of
the Union.”45
2 Coercion of Laws v. Coercion of Arms: the Federal Power to Coerce at the
Constitutional Convention
Madison, the “father of the Constitution,”46 considered the lack of federal coercion
power an important flaw in the system established by the Articles of
Confederation.47 In the essay Vices of the Political System of the United States, written
prior to the Constitutional Convention, he had lamented the “evil” of states’ failure
to comply with federal requisitions, writing: “[a] sanction is essential to the idea of
law, as coercion is to that of Government.”48 Madison’s conclusion was informed by
his comparative scholarly research on ancient and modern confederacies. In his
Notes on Ancient and Modern Confederacies, Madison refers, for example, to the
Amphyctionic Confederacy where “[f]oederal authority [sic]–employed whole force
of Greece agst. such as refused to execute its decrees.” He also describes something
akin to federal supremacy when referring to the federal army of the Helvetic
Confederacy: “The League consists in a perpetual defensive engagement agst.
40 For an overview of Shays’ rebellion, see ROBERT W. COAKLEY, THE ROLE OF FEDERAL MILITARY FORCES IN
DOMESTIC DISORDERS, 1789-1878, at 4-7 (1988); CHRISTIAN G. FRITZ, AMERICAN SOVEREIGNS: THE PEOPLE
AND AMERICA’S CONSTITUTIONAL TRADITION BEFORE THE CIVIL WAR 80-116 (2008).
41 COAKLEY, supra note 40, at 5.
42 JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 3334
(1996).
43 FRITZ, supra note 40, at 82-83, 133.
44 THE FEDERALIST NO. 85 (Alexander Hamilton) 520, 526.
45 THE FEDERALIST NO. 40 (James Madison), supra note 44, at 243 (describing the mandate for the
Constitutional Convention).
46 See, e.g. Jack N. Rakove, The Madisonian Moment, 55 U. CHI. L. REV. 473, 474 (1988); LANCE BANNING,
THE SACRED FIRE OF LIBERTY: JAMES MADISON AND THE FOUNDING OF THE FEDERAL REPUBLIC 113 (1995).
47 Charles F. Hobson, The Negative on State Laws: James Madison, the Constitution, and the Crisis of
Republican Government, 36 WM. & MARY Q. 215, 221 (1979).
48 Vices of the Political System of the United States (April 1787), in 9 PAPERS OF JAMES MADISON, supra note 18,
at 345.
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American Journal of Legal History
external attacks, and internal troubles. It may be regarded as an Axiom in the Public
Law of the Confederacy, that the federal engagements are precedent to all other political engagements of the Cantons.”49 Madison was convinced, based on his research, that any confederacy needed a powerful and effective national government.50
From the outset of the Constitutional Convention, the resolutions prepared by
the Virginia delegation proposed to include in the new Constitution a provision authorizing Congress “to call forth the force of the Union against any member of the
Union failing to fulfill its duty under the articles thereof.”51 Considering Madison’s
involvement in its drafting, it is unsurprising that the Virginia Plan made provision
for a federal coercion power. In fact, already the committee of 1781, in which
Madison had participated, had proposed declaring that the Continental Congress
possessed implicit coercive powers over the states.52
However, the federal power of coercion as presented in the Virginia Plan was
problematic to a number of delegates at the Convention. For example, George
Mason, himself a Virginia delegate, vehemently criticized the proposition that federal
requisitions could be executed by military coercion, considering it no more possible
to “execute civil Regulations by Military Force than. . .unite opposite Elements,
[or]. . .mingle Fire with Water.”53 In his view, it would be unthinkable to have the
“militia march[ing] from one State to another” collecting taxes or, even worse, a
standing federal army engaged in “military collection of revenue, in which the bayonet could make no discrimination between the innocent and the guilty.”54 Alexander
Hamilton, from New York, also thought the proposal to apply coercive power against
the states was “utopian.”55 According to Hamilton, large states such as Virginia could
not easily be coerced and the national government would have to “call in foreign
powers” to help with the task.56 This made coercion impracticable, inasmuch as the
federal government would not have the necessary means at its disposal.
Hamilton split the question of coercion into two: the “coercion of law” and the
“coercion of arms.”57 As for the first, “[it] can evidently apply only to men; the last
49 Notes on Ancient and Modern Confederacies (April- June? 1786), in 9 PAPERS OF JAMES MADISON, supra note
18, at 3.
50 BRANT, supra note 22, at 143. Referring to the experiences under the Articles, Madison wrote to George
Washington considering that without a federal veto power over state laws, “[t]he States will continue to
invade the national jurisdiction, to violate treaties and the law of nations & to harass each other with rival
and spiteful measures dictated by mistaken views of interest.” Madison to Washington (Apr. 16, 1787), in
9 PAPERS OF JAMES MADISON, supra note 18, at 382, 384.
51 1 THE RECORDS OF THE FEDERAL CONVENTION 21 (Max Farrand ed., 1911), at 68 [Hereinafter FARRAND].
The Virginia Plan, largely drafted by Madison, although presented to the Convention by Edmund
Randolph, the head of the delegation, served as a starting point for the discussions at the Constitutional
Convention. See also BRANT, supra note 22, at 147.
52 EDLING, supra note 10, notes, at 29, that the rejection of the views of the 1781 committee would be reflected in all subsequent proposals regarding coercion in that these would not be as “exceptionally heavyhanded.”
53 1 FARRAND, supra note 51 at 349, King’s Notes (Mason, June 19 [20]).
54 Id. at 335, 339-40 (Madison, June 20).
55 Id. at 302 (King, June 18).
56 Id.
57 Id. at 294, 296 (Yates, June 19). See also THE FEDERALIST NO. 15 (Alexander Hamilton), supra note 44, at
105: “It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty
or punishment for disobedience. . . . This penalty, whatever it may be, can only be inflicted in two ways:
Federal Coercion and National Constitutional Identity in the United States 1776-1861
335
kind must of necessity, be employed against bodies politic, or communities, or
States.”58 Hamilton criticized the system of the Articles and how “coercion of arms”
was the only option in that context: “the radical vice in the old Confederation is, that
the laws of the Union apply only to states in their corporate capacity.”59 Since violations of law by states could only be remedied by the use of military force, he reasoned
that, under that system, “every breach of the laws must involve a state of war.”60 The
coercion of delinquent states in their collective capacity was “impossible,” because
those in violation of their obligations would ally themselves with others in a similar
position. This would result, Hamilton predicted, in a war between the several states
with catastrophic consequences: “Foreign powers . . . will interpose, the confusion
will increase, and a dissolution of the Union ensue.”61
As for the “coercion of law,” Hamilton explained that, while Congress’s ability to
coerce by the mere force of law was limited, comparable powers in certain states
were quite sufficient. However, for him, “the idea of governing at all times by the simple force of law” was unfeasible.62 The experience under the Articles had shown that
while “the United States [had had] an indefinite discretion to make requisitions for
men and money . . . yet in practice [the requisitions were] mere recommendations
which the States observe[d] or disregard[ed] at their option.”63 Hamilton thus recognized that laws required an attendant sanction to be effective and conceded that
states needed to resort to military coercion to enforce their laws, but he doubted
whether similar force could be employed against the several states by the national
government. It seems that Hamilton resolved the problem through the idea that the
federal government would operate directly on individuals and, therefore, there would
be no need to coerce states.64
In the course of the Convention’s debates, Madison also came to admit that “the
more he reflected on the use of force, the more he doubted the practicability, the justice, and the efficacy of it when applied to people collectively and not individually.”65
He conceded that the “use of force against a state would look more like a declaration
of war than an infliction of punishment, and would probably be considered by the
party attacked as a dissolution of all previous compacts by which it might be
58
59
60
61
62
63
64
65
by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms.”
THE FEDERALIST NO. 15, supra note 44, at 105 (Alexander Hamilton).
The Debates in the Convention of the State of New York, on the Adoption of the Federal Constitution
(Poughkeepsie, June 17, 1788), in 2 THE DEBATES OF THE SEVERAL STATE CONVENTIONS ON THE ADOPTION
OF THE FEDERAL CONSTITUTION 231 (Jonathan Elliot ed., 1876) [hereinafter Elliot, DEBATES].
Id. Hamilton elaborated the topic further in THE FEDERALIST NO. 16, supra note 44, at 109.
1 Farrand, supra note 51, at 282, 285 (Madison, June 18).
THE FEDERALIST NO. 28 (Alexander Hamilton), supra note 44, at 174 (emphasis added).
THE FEDERALIST NO. 15 (Alexander Hamilton), supra note 44, at 103.
As Hamilton explained at the New York Ratifying Convention: “But can we believe that one state will
ever suffer itself to be used as an instrument of coercion? The thing is a dream; it is impossible. Then we
are brought to this dilemma—either a federal standing army is to enforce the requisitions, or the federal
treasury is left without supplies, and the government without support. What, sir, is the cure for this great
evil? Nothing, but to enable the national laws to operate on individuals, in the same manner as those of
the states do.” The Debates in the Convention of the State of New York, on the Adoption of the Federal
Constitution (Poughkeepsie, June 17, 1788), in 2 Elliot, DEBATES, supra note 59, at 232-33.
1 FARRAND, supra note 51, 54 (Madison, May 31).
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bound.”66 Madison agreed that larger states would be “impregnable” to the effects of
coercion, and forceful execution would only be directed at smaller states.67 He acknowledged that expressly providing for military coercion against delinquent states
should be avoided in the Constitution, since using force in a union of states might
prove self-destructive.68 In consequence, Madison himself finally proposed to the
Convention that consideration of the Virginia Plan’s resolution on coercion should
be postponed in the hope that a system could be devised which would make such a
provision unnecessary.69
The question of federal coercion resurfaced with the New Jersey Plan, the smaller
states’ response to the Virginia Plan presented to the Constitutional Convention by
William Paterson of New Jersey.70 Although less centralizing than the Virginia Plan
in that it built upon the basic structure of the Articles, the New Jersey Plan endorsed
the supremacy of federal laws and treaties,71 and provided for a power to coerce
states defaulting on their federal obligations. In particular, the proposed text provided that “if any State, or any body of men in any State shall oppose or prevent
[the] carrying into execution such acts or treaties, the federal Executive shall be authorized to call forth [the] power of the Confederated States, or so much thereof as
may be necessary to enforce and compel an obedience to such Acts, or an
Observance of such Treaties.”72 Interestingly, the proposed coercion power thus encompassed not only “any State,” but also “any body of men in any State”–thus paving
the way for a Constitution that would operate directly on individuals.
As a matter of fact, from the beginning of the Constitutional Convention the
question of federal coercion had been intertwined with the debate over the nature of
the new government. The idea of a “more perfect Union” transcended the paradigm
of a league of independent states and justified the creation of a nation capable of operating directly on the individuals comprising the nation. This evolution of the concept of state coercion was foreshadowed by Mason, who had pointed out early on in
the Convention that the “punishment against delinquent states” could not be inflicted on the states in their collective capacity and, therefore, the new federal government should be such that would be able to “directly operate on individuals, and
would punish those only whose guilt required it.”73
However, the proponents of the New Jersey Plan thought the Convention only
had the mandate to modify the Articles; it could not establish a whole new federal
66
67
68
69
70
71
Id.
Id. at 320 (Madison, June 19).
Id.
Id. at 54 (Madison, May 31).
KELLY, supra note 31, at 91-92.
1 FARRAND, supra note 51, at 245 (Madison, June 15):
Resd. that all Acts of the U. States in Congs. made by virtue & in pursuance of the powers
hereby & by the articles of confederation vested in them, and all Treaties made & ratified under
the authority of the U. States shall be the supreme law of the respective States so far forth as
those Acts or Treaties shall relate to the said States or their Citizens, and that the Judiciary of
the several States shall be bound thereby in their decisions, any thing in the respective laws of
the Individual States to the contrary notwithstanding. . . .
72 Id.
73 Id. at 34 (Madison, May 30).
Federal Coercion and National Constitutional Identity in the United States 1776-1861
337
order. This might have suggested that no right to operate directly on individuals
could exist because the modifications would be limited by the basic characteristics of
the Articles, in particular their structure based on the undivided sovereignty of individual states. Madison objected to this premise of the New Jersey Plan, considering
that “in a federal74 government, the power was exercised not on the people individually; but on the people collectively, on the States.”75 In Madison’s opinion, the
Convention should not be thus constrained, seeing that both the existing
Confederation “in some instances as in piracies, captures &c.” as well as the amendments proposed by the New Jersey Plan necessitated direct operation of national
laws on individuals.76 Similarly, Hamilton added that “the diet of Germany has in
some instances the power of legislation on individuals,” possibly indicating that the
formation of an association of independent states was not an exact science and that
such an association could take many forms.77
The failure of the New Jersey Plan to clearly enable direct national legislation on
individuals was interpreted by Randolph as meaning that the plan proposed to govern by exerting coercion against states. He chastised such a coercive form of government as “impracticable, expensive [and] cruel to individuals,” as well as resulting in
“habituat[ing] the instruments of [coercion] to shed the blood & riot in the spoils of
their fellow Citizens.” His view was that the only way to escape the “imbecility of the
existing Confederacy” was to allow Congress to enact “real legislation” over individuals.78 The development of the idea of a national government with powers to directly
operate on individuals thus reflected the concept of federal coercion.
In the end, the accepted view appeared to be that, under both plans, the national
government would have the power to act directly upon individuals.79 When put to
vote, the New Jersey Plan was rejected, and the Convention resumed its work based
on the Virginia Plan.80 A congressional veto power over any state laws was also suggested as an alternative to federal coercion. Indeed, Madison had thought from the
beginning that such an anticipatory veto would be a superior tool to ex post coercion
in achieving state compliance with federal obligations.81 While Madison was concerned that coercing states by the use of force would be difficult and would constitute a more intrusive mechanism vis-a-vis the states than an ex ante veto power over
state laws,82 it is unclear whether he necessarily considered the two powers mutually
exclusive. Indeed, considering Madison’s earlier view that the federal government
74 This use of “federal”–as opposed to “national”–in the Convention debates is, of course, antithetical to the
meaning of “federal” as used generally today and throughout this paper by the author.
75 1 FARRAND, supra note 51, at 313, 314 (Madison, June 19) (Emphasis in original).
76 Id.
77 Id. at 294 (Yates, June 19).
78 Id. at 249, 255-56 (Madison, June 16).
79 Id. at 270, 275-76 (Paterson, June 16); KELLY, supra note 31, at 98.
80 1 FARRAND, supra note 51, at 312 (June 19). See also KELLY, supra note 31, at 92.
81 “[A] negative in all cases whatsoever on the legislative acts of the States, as heretofore exercised by the
Kingly prerogative, appears to me to be absolutely necessary, and to be the least possible encroachment
on the State jurisdictions.” 1 FARRAND, supra note 51, at 21. Emphasis in original.
82 Madison had explained to Washington before the Convention that “the right of coercion should be expressly declared,” but also conceded that “the difficulty & awkwardness of operating by force on the collective will of a State, render it particularly desirable that the necessity of it might be precluded.” Madison
to Washington (Apr. 16, 1787), in 9 PAPERS OF JAMES MADISON, supra note 18, at 382, 383.
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American Journal of Legal History
possessed an implicit power to coerce recalcitrant states, it is conceivable that, at
least for him, ex post coercion would in any event have been necessary in cases where
the congressional veto would be insufficient to remedy a later infringement of federal
law, or where it would be altogether ignored by a state.
Ultimately no express federal power to coerce the states would be retained in the
text of the Constitution. Nor did the proposed congressional veto power receive the
delegates’ approval.83 The Pennsylvania delegate Gouverneur Morris thought the latter “would disgust all the States,”84 and Roger Sherman, from Connecticut, considered that it was “unnecessary, as the Courts of the States would not consider valid
any law contravening the Authority of the Union.”85 As coercion of states by force
appeared unfeasible to most delegates, they focused on the proposition that the rule
of law should govern the federal relations. In support of this solution, the framers
wrote out in express terms the supremacy of the new Constitution over state law.86
The “veto” power was given to the federal judiciary, which would play an instrumental role in the enforcement of federal law.87 For delegates suspicious of the new national government’s powers, this may have been a convenient option, since the
judicial department of government was perceived at the time as being “the least dangerous to the political rights of the Constitution.”88 It was expected that, insofar as
the judiciary had “no influence over either the sword or the purse,” it would limit itself to passively dealing out justice and it would have to depend on the executive
branch for the enforcement of its judgments.89
Although an explicit power to coerce states was thus kept out of the Constitution,
this did not mean that the permissibility of state coercion was fully settled. For example, it remained unclear to what extent the federal executive would be able to coerce a
recalcitrant state to comply with the decisions of federal courts holding a state law unconstitutional. While not completely oblivious to the idea of such judicial review, the
framers may not have appreciated the full magnitude of its potential for conflict in federal relations.90 Luther Martin, a delegate from Maryland, was unconvinced that the
83
84
85
86
2 FARRAND, supra note 51, at 21, 22.
Id. at 25, 28 (Madison, July 17).
Id. at 25, 27 (Madison, July 17).
U.S. CONST., art. VI, cl. 2:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;
and all Treaties made, or which shall be made, under the Authority of the United States, shall be
the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing
in the Constitution or Laws of any State to the Contrary notwithstanding.
See also Hobson, supra note 47, at 228.
87 KELLY, supra note 31, at 99.
88 THE FEDERALIST NO. 78, supra note 44, at 463, 464 (Alexander Hamilton). With the benefit of hindsight,
it can be noted that Hamilton may have underestimated the role that the Supreme Court would later assume. The opening sentence of a well-known work on that development encapsulates the matter succinctly: “The least dangerous branch of the American government is the most extraordinarily powerful
court of law the world has ever known.” ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE
SUPREME COURT AT THE BAR OF POLITICS 1 (1962).
89 THE FEDERALIST NO. 78, supra note 44, at 463, 464 (Alexander Hamilton).
90 See THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 44, at 463, 465 (“[T]he rights of the courts
to pronounce legislative acts void. . .is of great importance in all the American constitutions . . .”) Cf.
Michael J. Klarman, How Great were the “Great” Marshall Court Decisions?, 87 VA. L. REV. 1111, 1114
Federal Coercion and National Constitutional Identity in the United States 1776-1861
339
rejection of the New Jersey Plan had completely resolved the issue of federal coercion.
He indicated to the Convention that a national government might still need such
powers, adding: “a national Judiciary extended into the States would be ineffectual,
and would be viewed with a jealousy inconsistent with its usefulness.”91 This admittedly somewhat cryptic statement can be interpreted as casting doubt on whether the
sole existence of federal courts–or the mere “coercion of law,” to borrow Hamilton’s
terminology–would be sufficient to prevent states from disregarding federal law.
Thus, the debates at the Constitutional Convention laid the ground for the further evolution of the federal power to coerce. Moreover, the records of the debates
are inconclusive as to the existence of a possible implied power of coercion and the
practical difference between coercing a state, on the one hand, and multiple individuals, the new subjects of the federal government, on the other. Although we cannot
be sure whether Hamilton’s preference to grant Congress the ability to operate on
individuals simultaneously precluded an implicit federal power to coerce states, his
words would nevertheless be often quoted later as grounds for the proposition that
the federal government had no power whatsoever to coerce states. They would be invoked in this sense, for example, in the debates over the South Carolina nullification
of the federal tariff in 1832-1833,92 as well as in Congress on the eve of the Civil
War, following the election of Abraham Lincoln as President in 1860.93 The abstract
contours of the federal government’s power to coerce states, sketched by the framers
at the Philadelphia Convention, would have to be further filled in by the subsequent
constitutional practice.
I I I. F ED E R A L C O E R C I O N I N T HE PR E- CI V IL W A R E R A
1 Federal Coercion in the Early Republic
Following the adoption of the Constitution, the establishment of the new national
government implied far-reaching change. The Constitution challenged the received
wisdom of the time, namely that republicanism could only function in small communities.94 Although the Revolution had consolidated nationalist ideals, American identity–to the extent it existed–was not necessarily assimilated with the national
government.95 Moreover, the new constitutional order was characterized by the
91
92
93
94
95
(“[T]he concept of judicial review was novel and controversial in 1787, when the Framers wrote the
Constitution”). The U.S. Supreme Court would strike down a state law for the first time in Fletcher v.
Peck, 10 U.S. 87 (1810).
1 FARRAND, supra note 51, at 335, 341 (Madison, June 20).
9 REG. DEB. 601, 630 (1833).
See JESSE T. CARPENTER, THE SOUTH AS A CONSCIOUS MINORITY, 1789-1861; A STUDY IN POLITICAL
THOUGHT 216 (1930); WILLIAM D. PORTER, STATE SOVEREIGNTY AND THE DOCTRINE OF COERCION 15
(1860).
BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 365-368 (Enl. ed., 1992);
RAKOVE, supra note 42, at 49-50.
Karst, supra note 4, explains, at 363, that “[i]n the early years of the republic. . .strong national loyalty
was not to be taken for granted.” Nevertheless, the narrative of the special, even divine, mission of
America predated independence. The pilgrim ideal of “a shining city on a hill,” as preached by John
Winthrop on board the Arbella, bound from the Isle of Wight to Massachusetts Bay in 1630, also encompassed new ideas of government. Id. at 364. Thus, according to one account from 1782, an American was
one who, “leaving behind him all his ancient prejudices and manners, receives new ones from the new
mode of life he has embraced, the new government he obeys, and the new rank he holds.” J. HECTOR ST.
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American Journal of Legal History
framers’ explicit rejection of some of the traditional European institutions used to
foster allegiance to the state, namely those of a monarchy and an established
church.96 In the absence of a strong national identity, it was perhaps inevitable that
the national government, as well as the supremacy of federal law, would have to face
numerous challenges in the decades that followed the ratification of the
Constitution.
The first serious opposition to the federal government related to the use of its fiscal powers under the Constitution. As with Shays’ Rebellion against the
Massachusetts state government some years earlier, the conflict leading to the socalled Whiskey Rebellion in 1794 originated from the economic distress of farmers,
this time in Western Pennsylvania. Distilling whiskey was for crop farmers a way to
reduce their harvest to a compact form to be sold on the markets.97 It was also commonplace to trade whiskey for supplies, and the farmers sold it in order to acquire
hard currency.98 Following the constriction of the money supply in an effort to pay
off the nation’s war debt, the collection of the federal whiskey excise tax of 1791 exposed small farmers who lacked sufficient resources to property foreclosures. For
them, the effects of the tax appeared particularly unjust. In fact, the Continental
Congress had raised funds for the war by issuing interest-bearing promissory notes,
which were acquired over time by a small number of speculators for less than their
full value. These speculators lobbied for annual interest payments and the redemption of the notes at face value and the proceeds of the whiskey excise tax were used
in large part to ensure these payments.99
The Pennsylvania farmers held meetings where they resolved to oppose the collection of the federal tax. Local authorities, such as local county justices, juries, and
constables, who were sympathetic to the plight of the farmers, also declined to further tax collection. The farmers blocked roads to prevent sheriff’s auctions on foreclosed properties and, as the conflict escalated, some tax collectors were tarred and
feathered.100 As the U.S. Marshal for the District of Pennsylvania attempted to serve
writs on farmers for violating the excise law and to appear in a federal court in
Philadelphia, he was greeted by a violent mob and had to flee. Protesters demanded
the resignation of the inspector for revenue and, as the conflict escalated, shots were
fired and the inspector’s house was burned to the ground.101
As President George Washington’s administration learned of the opposition to
the tax collection, it opted for the use of force to suppress the rebellion. This did not
happen without internal deliberations on the subject, however.102 Under the 1792
Calling Forth Act, the President needed a federal judge to certify that the federal
96
97
98
99
100
101
102
JOHN DE CRÈVECOEUR, LETTERS FROM AN AMERICAN FARMER 55 (1782) (1904). BAILYN, supra note 94, at
139-43.
Karst, supra note 4, at 370.
COAKLEY, supra note 40, at 30.
FRITZ, supra note 40, at 163.
Id. at 158-159; COAKLEY, supra note 40, at 29.
FRITZ, supra note 40, at 160, 166.
COAKLEY, supra note 40, at 33-34.
The deliberations are described in great detail in Richard H. Kohn, The Washington Administration’s
Decision to Crush the Whiskey Rebellion, 59 J. AM. HIST. 567, 572 (1972). See also EDLING, supra note 39,
at 136.
Federal Coercion and National Constitutional Identity in the United States 1776-1861
341
excise laws were being obstructed in order to then “call forth the militia . . . to cause
the laws to be duly executed.”103 Although such an authorization was received,
Washington proceeded first with caution, making first several public appeals to the
protesters.104 The use of the militia was also made more difficult by the reticence of
the Republican Pennsylvania state government.105
However, the negotiations with the protesters proved unfruitful. By the time rumors started to circulate that the insurgents were planning secession with the help of
British aid, the federal government’s strategy had matured from appeasement to military coercion.106 While Secretary of the Treasury Alexander Hamilton considered
the display of military capability a positive development in the consolidation of federal power, Secretary of State Edmund Randolph maintained that the use of force
should be withheld until other means had been exhausted.107 Nevertheless, at this
point President Washington no longer hesitated to mobilize the militia against the
rebels. In his Proclamation of August 7, 1794, the President lamented that “many
persons in the. . .western parts of Pennsylvania have. . .perpetrate[d] acts which I am
advised amount to treason, being overt acts of levying war against the United
States.”108 An army of over 10,000 men from four states–Pennsylvania, Maryland,
Virginia, and New Jersey–was mobilized.109 The federal government’s military operation was ultimately very successful: as it marched to Pennsylvania, it met no resistance from the protesters.110
The federal government also experienced resistance on the part of the states
themselves. Indeed, many of the seminal Supreme Court decisions met with vehement state opposition in the Early Republic. One of the more forceful reactions of
the federal government was that provoked by Pennsylvania’s defiance of the
Supreme Court in the aftermath of United States v. Peters.111 The facts of the case
concerned events during the Revolutionary War. In short, American seamen, captured by the British and held on board a ship flying the flag of Great Britain, mutinied and assumed control of the ship. The vessel was subsequently taken over by the
Pennsylvania fleet, but the American seamen claimed that the vessel and cargo belonged to them as a lawful prize. This was eventually affirmed by a federal court order as an admiralty matter.112
103 Act of May 2, 1792, ch. 28, 1 Stat. 264 (repealed 1795). For a discussion on the Calling Forth Act of
1792 and the succeeding Militia Acts, see Stephen I. Vladeck, Emergency Power and the Militia Acts 114
YALE L.J. 149 (2004).
104 EDLING, supra note 39, at 136.
105 Kohn, supra note 102, at 573-74.
106 Id. at 578.
107 COAKLEY, supra note 40, at 37; Kohn, supra note 102, at 582.
108 George Washington, “Proclamation,” Aug. 7, 1794, in 33 THE WRITINGS OF GEORGE WASHINGTON FROM
THE ORIGINAL MANUSCRIPT SOURCES, 1745-1799 458 (John C. Fitzpatrick ed., 1931-1944).
109 Vladeck, supra note 103, at 161.
110 EDLING, supra note 39, at 136-137; Kohn, supra note 102, at 584.
111 9 U.S. 115 (1809). Peters was the name of the District Court judge to whom the Supreme Court issued
a mandamus to enforce his ruling.
112 William O. Douglas, Interposition and the Peters Case, 1778-1809, 9 STAN. L. REV. 3, 3-12 (1956) (explaining stages in litigation which spanned over two decades, including remarks on development of admiralty
jurisdiction during that period as well as anecdotes about Judge Peters’ scientific experiments in field of
agriculture).
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American Journal of Legal History
Disregarding the federal court’s order, the Pennsylvania legislature passed a law
authorizing its Governor to take possession of the prize money.113 As the case
reached the Supreme Court, it held, per Chief Justice John Marshall, in an iconic restatement of the Supremacy Clause that:
[i]f the legislatures of the several States may, at will, annul the judgments of
the courts of the United States, and destroy the rights acquired under those
judgments, the Constitution itself becomes a solemn mockery, and the nation
is deprived of the means of enforcing its laws by the instrumentality of its own
tribunals.114
Unimpressed, Pennsylvania’s Governor Simon Snyder refused to comply with the
ruling. Pursuant to the newly enacted Pennsylvania law, the Governor considered it
his duty to resist the federal courts,115 and the marshal delivering the writ was
greeted at the address where service was due by “state troops with drawn
bayonets.”116
The Pennsylvania legislature then prompted its Governor to contact President
Madison in order to negotiate the matter with the federal government. In his letter,
Governor Snyder implied that Madison, as the author of the rebellious Virginia
Resolutions of 1798,117 might view the state legislature’s opposition to the Supreme
Court’s ruling as legitimate:
I am consoled with the pleasing idea, that the Chief Magistracy of the Union is
confided to a man . . . who is no less disposed to protect the sovereignty and
independence of the several States, as guarantied [sic] to them, than to defend
the rights and legitimate powers of the General Government; who will justly
discriminate between opposition to the constitution and laws of the United
States, and that of resisting the decree of a judge, founded, as it is conceived, in
a usurpation of power and jurisdiction not delegated to him by either; and
who is equally solicitous with myself, to preserve the Union of the States, and
to adjust the present unhappy collision of the two Governments in such a
manner as will be equally honorable to them both.118
However, President Madison’s rejoinder was unwaveringly clear when he replied:
“. . .the Executive of the United States is not only unauthorized to prevent the execution of a decree sanctioned by the Supreme Court of the United States, but is expressly enjoined, by statute, to carry into effect any such decree where opposition
may be made to it.”119 Madison’s resoluteness was subsequently rewarded and an
113 DWIGHT WILEY JESSUP, REACTION AND ACCOMMODATION: THE SUPREME COURT & POLITICAL CONFLICT,
1809-1835, at 143 (1987).
114 Peters, 9 U.S. at 136.
115 JESSUP, supra note 113, at 143.
116 Id. at 144.
117 On the Kentucky and Virginia Resolutions of 1798, see infra notes 151-53.
118 2 AMERICAN STATE PAPERS MISC. 12 (1834).
119 Id.
Federal Coercion and National Constitutional Identity in the United States 1776-1861
343
armed confrontation was avoided when Governor Snyder decided to comply with
the ruling and the federal marshal was able to serve the writ.120
As President, Madison evidently believed federal court decisions should not be
toothless, even if rendered against a state. While any formal coercion power of the
federal government over the states may have been discarded from the Constitution
at the Philadelphia Convention, the supremacy of federal law commanded the
President to enforce a decision of the Supreme Court, even if the opposition clearly
stemmed from the official action of the state.
In addition, many other U.S. Supreme Court decisions were outright attacked in
various states in the 1810s and 1820s.121 A case in point is Georgia, where the state
government had already refused point-blank to execute the Supreme Court’s decision in Chisholm v. Georgia in 1793.122 In 1810, the Supreme Court’s ruling in
Fletcher v. Peck123 invalidated legislation the purpose of which was to annul the previous sale of Yazoo lands by the Georgia legislature, as a violation of the Commerce
Clause of the federal Constitution. This provoked notably an outraged Georgian
congressman to label the decision of the Supreme Court a denial of state rights and
to demand on the House floor that federal troops be deployed to remove the victorious claimants from the lands in question.124 These land disputes laid the ground for
further clashes between Georgia and the Court regarding questions of jurisdiction
over Cherokee Indians and their title to land.125
In Virginia, the highest state court refused to recognize the Supreme Court’s jurisdiction in the litigation that culminated in Martin v. Hunter’s Lessee,126 whereby the
Supreme Court asserted appellate jurisdiction over state court decisions involving
federal law.127 In fact, the Virginia Court of Appeals effectively took upon itself to review the constitutionality of section 25 of the 1789 Judiciary Act, the federal statute
providing for the Supreme Court’s appellate review. In the end, neither court backed
down from its position.128 Furthermore, the subsequent ruling in Cohens v.
Virginia,129 whereby the Supreme Court again asserted its jurisdiction in a case where
the state of Virginia was party to a state criminal prosecution involving federal lottery
regulation, provoked critical voices from the state legislature that the Eleventh
120 JESSUP, supra note 113.
121 See generally JESSUP, supra note 113.
122 Chisholm v. Georgia, 2 U.S. 419 (1793) (holding state is suable by citizens of another state) (overturned
by enactment of 11th Amendment to U.S. Const.); see also KELLY, supra note 31, at 161.
123 6 U.S. 87 (1810) (holding that state legislature cannot annul contract even when state itself was party
thereto).
124 JESSUP, supra note 113, at 152.
125 See Johnson v. M’Intosh 21 U.S. 543 (1823) (holding fee title to land created by discovery of Northern
America); Worcester v. Georgia, 31 U.S. 515 (1832) (holding Georgia lacks jurisdiction over Cherokee
nation).
126 14 U.S. 304 (1816) (asserting that U.S. Supreme Court has appellate jurisdiction over state court decisions involving federal law).
127 JESSUP, supra note 113, at 162.
128 See generally F. THORNTON MILLER, JURIES AND JUDGES VERSUS THE LAW: VIRGINIA’S PROVINCIAL LEGAL
PERSPECTIVE, 1783-1828 74-86 (1994).
129 19 U.S. 264 (1821) (holding U.S. Supreme Court has appellate jurisdiction over state court decisions involving criminal law and when state is party to lawsuit).
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Amendment precluded such a suit.130 In consequence, Virginia only appeared briefly
before the Supreme Court and moved to dismiss for lack of jurisdiction, after which
the state withdrew from the case.131 While the Supreme Court again upheld section
25 of the 1789 Judiciary Act, the ruling had no effect on the Virginia courts.132
Yet another state where the Supreme Court’s decisions met with vehement resistance was Kentucky. The highly unpopular decision in Green v. Biddle,133 holding
that Kentucky’s occupying-claimant laws violated the Contracts Clause, intervened at
a time of economic crisis and was unfavorable to land tenants. Its effects were compounded by state court decisions in Kentucky invalidating the state’s debt relief legislation.134 The overall impact of these rulings was attributed to the federal
government and the Bank of United States in particular. In fact, a Kentucky court
held only a few months after the Supreme Court’s ruling in McCulloch v. Maryland
holding that states cannot tax the Bank of the United States that the Bank was indeed unconstitutional and that Kentucky could tax it irrespective of the Supreme
Court’s decision on the matter.135
However, these protests, although widespread and numerous, were largely contained within individual states and did not pose a major threat to the integrity of the
federal system as a whole. The federal government’s response to these instances of
state opposition would often consist of simply waiting for the particular controversy
to disappear.136 The clashes between state and federal authority would intensify in
the 1830s in the context of the South Carolina Nullification Crisis. Another 30 years
later, the outbreak of the Civil War would provide the ultimate test for the federal
government’s coercive powers over seceding states. These two key episodes in the
history of the Constitution, and their impact on federal coercion, are addressed in
the following sections.
2 South Carolina Nullification Crisis and the Threat of Federal Coercion
The reasons underlying the Nullification Crisis of 1832-1833 merit to be briefly outlined before the question of federal coercion is addressed in its context. The nullification debate arose from a protective external tariff imposed by Congress. American
130 JESSUP, supra note 113, at 204.
131 LINDSAY G. ROBERTSON, CONQUEST BY LAW: HOW THE DISCOVERY OF AMERICA DISPOSSESSED INDIGENOUS
PEOPLES OF THEIR LANDS 79-80 (2005). See also JESSUP, supra note 113, at 205-13.
132 MILLER, supra note 128, at 89-90.
133 21 U.S. 1 (1823).
134 Frank F. Mathias, The Relief and Court Struggle: Half-Way House to Populism, 71 REG. OF KY. HIST. SOC’Y,
154, 166-68 (1973). These events culminated in a rather curious constitutional crisis when the state legislature abolished the state high court and replaced it with a new one. During the several months’ standoff, the old court and its supporters refused to recognize the legitimacy of the new court created by the
majority of the state legislature. Following a series of attempts by the two courts to gain legitimacy on either side–including an episode where the clerk of the new court broke into the old court’s registry to
seize the files of pending cases–, the supporters of the new court eventually lost the battle and the old
court was reinstated. Id. at 170-72. See generally ARNDT MATHIAS STICKLES, THE CRITICAL COURT
STRUGGLE IN KENTUCKY 1819-1829, at 82 (1929).
135 Mathias, supra note 134, at 156-57. See also Osborn v. Bank of U.S., 22 U.S. 738 (1824) (reaffirming
holding of McCulloch v. Maryland, 17 U.S. 316 (1819), according to which states cannot tax the Bank
of the United States).
136 See generally JESSUP, supra note 113, at 159-231.
Federal Coercion and National Constitutional Identity in the United States 1776-1861
345
manufacturers had benefited from substantial domestic demand in the early 1800s,
due to the disruptions in foreign commerce as a result of the War of 1812 against
Great Britain as well as the contemporary Napoleonic Wars in Europe.137 As these
conflicts subsided, cheap foreign goods flooded the American market.138 In response,
the United States enacted a protective tariff in 1816. This notably benefited the
American manufacturing industry, which was concentrated in northern states.
Following the Panic of 1819, a banking and foreign trade crisis,139 the tariff was first
increased in 1824, and again in 1828.140
Southern states strongly opposed the tariff policy.141 The southern planters did
not benefit from the external tariff: consumer prices for imported goods increased,
and Southerners were fearful of retaliatory tariffs from foreign governments, which
would annihilate overseas demand for their products.142 The Nullification Crisis,
which escalated in South Carolina following the 1828 “Tariff of Abominations,”143
had its roots both in the economic depression of the 1820s as well as the beginnings
of the national abolitionist movements. South Carolina, in particular, had been affected gravely by the economic downturn of the 1820s, and the federal tariff was generally blamed for the woeful state of the economy.144 The pecuniary worries of its
planters were exacerbated by the combined effect of new competition in the production of cotton along the Gulf Coast and the decline in the agricultural export trade as
a result of the tariff policy.145
However, the fierce opposition to the federal tariff is more readily explained by
the perceived federal interference in South Carolina’s affairs. With, proportionally,
the largest slave population in the country, South Carolina’s wealthy citizens were
concerned with slave uprisings, particularly following incidents like the Vesey
Conspiracy in 1822.146 Slavery was increasingly addressed in discussions in the national arena,147 and Southerners were generally concerned that their minority position in Congress would eventually undermine their interests, including the
137 FREDERIC BANCROFT, CALHOUN AND THE SOUTH CAROLINA NULLIFICATION MOVEMENT 1 (1966).
138 Id. at 2.
139 On the reasons for the Panic of 1819, see, e.g., MURRAY N. ROTHBARD, THE PANIC OF 1819: REACTIONS AND
POLICIES 4-14 (1962).
140 COAKLEY, supra note 40, at 95.
141 While some southern politicians had supported the tariff in 1816, by 1820 the planting South was overwhelmingly opposed to the tariff policy. BANCROFT, supra note 137, at 2, 8.
142 FREEHLING, supra note 1, at 107.
143 BANCROFT, supra note 137, at 10.
144 RICHARD E. ELLIS, THE UNION AT RISK: JACKSONIAN DEMOCRACY, STATES’ RIGHTS, AND THE NULLIFICATION
CRISIS 7 (1987).
145 Id.; FREEHLING, supra note 1, at 24; KELLY, supra note 31, at 207; BANCROFT, supra note 137, at 23.
146 Denmark Vesey, a slave who had bought his freedom, organized a slave uprising in Charleston, but the
city authorities got wind of the plan and executed the persons responsible for it. FREEHLING, supra note
1, at 53-61. See also id. at 61-65, for other slave insurrections in South Carolina and Virginia at the time.
147 One example of this is the adoption of the Missouri Compromise in 1820, a federal statute which barred
slavery in federal territories north of the 36 30’ line. The statute, held unconstitutional by the Supreme
Court in Dred Scott v. Sandford, 60 U.S. 393 (1857), was de facto superseded by the Kansas-Nebraska
Act, adopted by Congress in 1854, which permitted slavery in those states. See KELLY, supra note 31, at
265-75.
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preservation of slavery.148 The abolition of slavery would put the economic prosperity and the whole southern way of life in jeopardy.149
The most prominent critic of the federal tariff was John C. Calhoun, Vice
President under John Quincy Adams and again in the administration of Andrew
Jackson. In his writings, Calhoun relied on the legacy of the Kentucky and Virginia
Resolutions of 1798, invoking a “high power of interposition,”–essentially a veto
power–which states possessed.150 For the drafters of the original Kentucky and
Virginia Resolutions, at the heart of “compact theory”151 lay the assertion that, “in
case of a deliberate, palpable, and dangerous exercise of other powers not granted by
the said compact,” the state parties would have the right to “interpose for arresting
the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them.”152 Any laws passed by Congress, under powers not delegated to it, should be declared null and void.153
However, while the Kentucky and Virginia Resolutions did not contemplate a
state power with an actual nullifying effect over federal laws, their theory was appropriated and refashioned by Calhoun. According to the southern theorist, the power
of “interposition” was reserved to the states in a federal system, to be employed as a
last-resort alternative to “submission and oppression on one side, or resistance by
force on the other.”154 In Calhoun’s texts, the essence of compact theory was that
the federal government was an agent of the several states, who were its principals.
Hence, whenever a question of final constitutional interpretation would arise, the
federal government would be obliged, “as in all similar cases of a contest between
one or more of the principals and a joint commission or agency, to refer the contest
to the principals themselves.”155
From this premise, Calhoun drew the inference that the bodies of the federal government, as agents, could not have “a right to final cognizance, as against the principals, much less to use force against them to maintain their construction of their
powers.”156 Disagreements over the meaning of the Constitution could not be
148 ELLIS, supra note 144, at 7; see generally CARPENTER, supra note 93.
149 FREEHLING, supra note 1, also observes at 51, that “[a]bolition posed a greater economic threat than the
abominations of the highest protective tariff.” Emphasis in original.
150 The Fort Hill Address: On the Relations of the States and Federal Government (July 26, 1831), in JOHN C.
CALHOUN, UNION AND LIBERTY: THE POLITICAL PHILOSOPHY OF JOHN C. CALHOUN 384 (1992).
151 The term “compact” was by no means used for the first time in these resolutions, but was employed, for
example, already by the colonists in the Mayflower Compact (1620). Thus, the meaning of “compact”
for Jefferson and Madison, the drafters of Kentucky and Virginia Resolutions, was no more than “an
agreement or contract between independent parties, giving rise to rights and obligations.” WILLIAM J.
WATKINS, JR., RECLAIMING THE AMERICAN REVOLUTION: THE KENTUCKY AND VIRGINIA RESOLUTIONS AND
THEIR LEGACY 59 (2004).
152 Virginia Resolutions of 1798 Pronouncing the Alien and Sedition Laws to be Unconstitutional and Defining
the Rights of the States (Dec. 21, 1798), in 4 Elliot, DEBATES, supra note 59, at 528-29.
153 “That the several states who formed that instrument [that is, the Constitution] being sovereign and independent, have the unquestionable right to judge of the infraction; and, That a nullification of those
sovereignties, of all unauthorized acts done under color of that instrument is the rightful remedy.”
Resolution adopted by the Kentucky legislature on Nov. 22, 1799, in 4 Elliot, DEBATES, supra note 59, at
544-45.
154 CALHOUN, supra note 150, at 384.
155 Id. at 382.
156 Id. at 382 (emphasis added here).
Federal Coercion and National Constitutional Identity in the United States 1776-1861
347
resolved by force, quite simply because the national government was not itself a party
to the “constitutional compact.”157 Unlike secession, nullification was for Calhoun a
“peaceable” act; the nullification of federal law would not render the state a foreign
nation, but would simply “repudiate the unwarranted act of the agent” while the state
would remain in the Union.158
While Calhoun expressed his theory as the logical extension of the ideas propounded in the Kentucky and Virginia Resolutions, Madison, the drafter of the
Virginia document and still alive at the time, refuted this understanding as an error
“[arising] from a failure to distinguish between what is declaratory of opinion and
what is ipso facto executory.”159
Despite Madison’s explanations, the “abominable” character of the tariff of 1828
seemed beyond doubt to nullifiers. For example, South Carolina Governor George
McDuffie likened the tariff in his toast speech to the Stamp Act of 1765, a major
cause of rebellion in the American Revolution, considering the two “kindred acts of
despotism.”160 Calhoun’s theory provided an appropriate outlet for the displeasure
which culminated in the adoption of the Nullification Ordinance of 1832, by which
the South Carolina legislature declared the federal tariff “null, void, and no law, nor
binding upon this State, its officers or citizens,” inasmuch as it was considered to exceed the powers delegated to Congress.161
The Nullification Ordinance moreover declared that the People of South
Carolina . . . will not submit to the application of force, on the part of the
Federal Government, to reduce this State to obedience; but that we will consider the passage, by Congress, of any act. . .to coerce the State, shut up her
ports, destroy or harass her commerce, or to enforce the acts hereby declared
to be null and void, otherwise than through the civil tribunals of the country,
as inconsistent with the longer continuance of South Carolina in the Union
and that the people of this State will thenceforth hold themselves absolved
from all further obligation to maintain or preserve their political connexion
with the people of the other States. . .162
The nullification controversy is considered the “most serious constitutional crisis
to take place in the United States in the period between the adoption of the
Constitution and the Civil War.”163 Unlike previous assertions of retained state
power, it seemed plausible that South Carolina might actually defy federal law and
thereby proceed with the unilateral nullification of the tariff.164
157 Id. at 382.
158 Id. at 121. See also on Calhoun’s theory on “undoing” nullification by a process resembling amending
the Constitution, at 122-23.
159 Madison to Edward Livingston (May 8, 1830), in 4 LETTERS AND OTHER WRITINGS OF JAMES MADISON,
1829-1836, CONGRESSIONAL EDITION 80 (1865) (emphasis in original).
160 BANCROFT, supra note 137, at 52.
161 South Carolina Ordinance of Nullification, November 24, 1832. 1 S.C. STAT. 329-33 (Columbia, S.C., A.
S. Johnston, 1836).
162 Id.
163 ELLIS, supra note 144, at 12.
164 Id.
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President Andrew Jackson’s response to the crisis was firm, however. While he
admitted the external tariff burdened some states, he was adamant that it was constitutional.165 Moreover, Jackson could not accept the nullifiers’ assumption of power
to repeal laws enacted by the majority: “That ours is a Government of laws, and depends on a will of the majority, is the true reading of the Constitution.”166 The
President outright rejected the South Carolinians’ idea of secession as a constitutional right that could be simply elected by a state.167
In his Proclamation, Jackson warned the South Carolinians of the consequences
of the Nullification Ordinance, while ridiculing the “discovery” of their new doctrine
and its “impracticable absurdity.”168 The President noted that even under the
Articles of Confederation, states’ noncompliance with federal requisitions was not
possible on the ground that they would have had a power to nullify those measures,
but simply because the Continental Congress lacked the power to enforce such requisitions.169 Jackson further noted that the nullifiers did not rely on the right of rebellion, but on the “strange” position that the Constitution would permit a state to
declare void an act of Congress, as well as impede its execution.170 In unequivocal
language, Jackson, himself a Southerner, refused to follow this argument. He proclaimed such state power “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.”171
Jackson effectively vowed to uphold the rule of law by force. For him, the constitutional duty of the President was to execute the laws of the United States. Relying
on the Union’s founding document, he explained that “I have no discretionary power
on the subject; my duty is emphatically pronounced in the Constitution.”172 The
President then rejected the nullifiers’ view of compact theory, by offering an alternative view:
Because the Union was formed by a compact, it is said the parties to that compact may, when they feel themselves aggrieved, depart from it; but it is precisely because it is a compact that they can not. A compact is an agreement or
binding obligation. It may by its terms have a sanction or penalty for its breach,
or it may not.173
165 Id. at 43-44.
166 Andrew Jackson to Robert Y. Hayne (8 Feb. 1831), in 4 CORRESPONDENCE OF ANDREW JACKSON 24142
(John S. Bassett, ed., 1926-35).
167 ELLIS, supra note 144, at 48.
168 Proclamation by Andrew Jackson, President of the United States (December 10, 1832), in 2 A
COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1902 640, 642 (James D. Richardson
ed., 1908) [hereinafter MESSAGES AND PAPERS OF THE PRESIDENTS].
169 Id. at 643. Jackson notes, in particular, that, under the Articles, Congress had no power to operate on individuals and there was no federal judiciary.
170 Id. at 641.
171 Id. at 643.
172 Id. at 654.
173 Id. at 649.
Federal Coercion and National Constitutional Identity in the United States 1776-1861
349
Jackson’s vision of the Constitution was that it created a government, not a league of
states. “A league between independent nations generally has no sanction other than
a moral one; or if it should contain a penalty, as there is no common superior it can
not be enforced. A government, on the contrary, always has a sanction, express or
implied.”174 Moreover, under the Constitution, American citizens owed primary allegiance to the United States, not to their respective states, and attempted nullification
would be treason.175 Indeed, the southern President addressed the citizens of South
Carolina directly in his Proclamation.176 For Jackson, the Constitution was the
founding document of a national government, with constituent states as members,
but with powers directly over the people. The latter, as subjects of the federal government, could be coerced into compliance, should it become necessary.177
For its part, the South Carolina legislature denied that any federal authority could
restrain a state’s power to secede. One of its resolutions addressed the question of
federal coercion, declaring that “there is no constitutional power in the general government, much less in the executive department, of that government, to retain by
force [a] state in the Union.”178 Jackson was not unprepared for such resistance,
however. While he was addressing the people of South Carolina, measures for
enforcing the tariff by force were already being taken. The President had notably
sent General Winfield Scott to Charleston to conduct military preparations.179
Among other reinforcements, five artillery companies and two schooners were deployed around Charleston in anticipation of a possible confrontation.180
As an interesting aside, Jackson’s strict view on South Carolina’s nullification attempt was diametrically at odds with his position on the contemporaneous actions of
another State, Georgia. The missionary Samuel Worcester had been convicted by the
Georgian state courts for operating in the Cherokee Nation without the state’s authorization. In its seminal ruling in Worcester v. Georgia,181 the Marshall Court had
recognized the Cherokee Nation as a distinct political community beyond the reach
of Georgia’s jurisdiction. However, Georgia refused to enforce the judgment.182
174 Id. at 649.
175 Id. at 650:
The States severally have not retained their entire sovereignty. . . .in becoming parts of a nation,
not members of a league. . .[t]he allegiance of their citizens was transferred, in the first instance,
to the Government of the United States; they became American citizens and owed obedience to
the Constitution. . .What shows conclusively that the States cannot be said to have reserved an
undivided sovereignty is that they expressly ceded the right to punish treason – not treason
against their separate power, but treason against the United States. Treason is an offense against
sovereignty, and sovereignty must reside with the power to punish it.
176 Id. at 652 (“you have been led to the brink of insurrection and treason on which you stand”).
177 As for the necessity, the Supreme Court had held in Martin v. Mott, 25 U.S. 19 (1827) that, pursuant to
the Calling Forth Act of 1795, the calling forth of the militia was an executive power not subject to judicial review. Id. at 31 (“The law does not provide any appeal from the judgment of the President. . .”).
See also supra note 103.
178 South Carolina’s reply to Jackson’s Proclamation, December 20, 1832. 1 S.C. Stat. 356-57 (Columbia,
S.C., A.S. Johnston, 1836).
179 COAKLEY, supra note 40, at 97.
180 Id. at 97-98.
181 31 U.S. 515 (1832).
182 KELLY, supra note 31, at 205.
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Moreover, Georgian authorities executed a Cherokee Indian, who had been sentenced to death by a state court for the murder of another Indian, before the case
duly reached the U.S. Supreme Court.183 President Jackson did not react to these flagrant challenges of federal authority.184 In fact, he approved of Georgia’s Indian removal policy as a matter of personal conviction.185 The Georgian policy was also
consistent with federal attempts to coerce Indian removal.186 Yet, Georgia’s “practical [n]ullification”187 was embarrassingly inconsistent with his strict adherence to upholding the Constitution vis-a-vis South Carolina during the Nullification Crisis. To
keep South Carolina’s secessionists at bay, Jackson’s administration persuaded the
Governor of Georgia to pardon Worcester. Following the pardon, the suit, which the
Supreme Court had in the meantime remanded to the state courts, was dropped and
the conflict between the federal government and Georgia died away.188
In South Carolina, open confrontation was ultimately avoided as Congress
adopted a compromise tariff. At the same time, it is fair to assume that President
Jackson’s readiness to deploy federal force contributed to diffuse the conflict.189
Anticipating future conflicts, Congress bestowed on the President ample powers to
use military force.190 Jackson had made a clear case against nullification, directing his
threats of coercion at the individual nullifiers in South Carolina. Treating a group of
individuals, rather than the nullifying state itself, as the object of federal coercion
would hence appear to have been established as the federal executive’s modus operandi. A similar strategy would be adopted in a few decades’ time, as the federal government’s power to coerce a state to remain in the Union would be put to an even
more demanding test with the outbreak of the Civil War.
3 Secession and Federal Coercion
For the discussion on federal coercion and secession, it is again helpful to sketch an
outline of the historical context. The root cause for southern secession and the
183 ELLIS, supra note 144, at 29. The crime of “Corn Tassel” was having “waylaid and killed an Indian named
Sanders, Talking Rockford.” See SIDNEY L. HARRING, CROW DOG’S CASE: AMERICAN INDIAN SOVEREIGNTY,
TRIBAL LAW AND UNITED STATES LAW IN THE NINETEENTH CENTURY 27-28 (1994).
184 Jackson is sometimes misquoted to have said: “Well, John Marshall has made his decision. Now let him
enforce it!” Instead, Jackson wrote in a letter that “the decision of the Supreme Court has fell still born,
and they find that they cannot coerce Georgia to yield to its mandate.” See PAUL F. BOLLER JR. & JOHN
GEORGE, THEY NEVER SAID IT: A BOOK OF FAKE QUOTES, MISQUOTES, AND MISLEADING ATTRIBUTIONS 53
(1989).
185 CHARLES WARREN, THE SUPREME COURT IN U.S. HISTORY 731 (1937). See also Johnson v. M’Intosh
21 U.S. 543 (1823) (holding fee title to land created by discovery of Northern America); Mitchel v.
United States., 34 U.S. 711 (1835); United States v. Fernandez, 35 U.S. 303 (1836); Clark v. Smith,
38 U.S. 195 (1838) (affirming discovery doctrine established in Johnson).
186 ROBERTSON, supra note 131, at 141.
187 See, WARREN, supra note 185, at 734.
188 KELLY, supra note 31, at 205.
189 Similarly, during the so-called Dorr Rebellion of 1841-1842 in Rhode Island, while federal forces were
never actually deployed in support of the Charter government, the disposition of President Tyler to use
the military discouraged the Dorr opposition in the struggle between the two competing governments.
On the Dorr Rebellion, see, FRITZ, supra note 40, at 246-76; Vladeck, supra note 103, at 170-75; Luther
v. Borden, 48 U.S. 1 (1849) (holding that replacing existing state government by another constitutes
non-justiciable political question).
190 ELLIS, supra note 144, at 168-69; COAKLEY, supra note 40, at 102.
Federal Coercion and National Constitutional Identity in the United States 1776-1861
351
ensuing Civil War was slavery. While the Union had been divided for a long time
into slaveholding and “free” states, the constitutional status of slavery in the federal
territories – and the fear of its spread to free states – was an important question for
the development of the armed conflict between the North and the South.191
Southerners considered that their “peculiar institution,” to use the infamous euphemism, was fundamental for their way of life.192 While the Declaration of
Independence had proclaimed equality and liberty for all, the Constitution had
enshrined a constitutional right to property which, under the contemporary notion,
included the right of a master over his slave.193 Ever since the founding of the federal
government, the Constitution had not only accommodated the institution of slavery
within its framework of national governance, as in the “Three-Fifths Clause” concerning southern representation in Congress,194 but it had also actively protected the
slave owners’ right to their slaves as property, as demonstrated by the Fugitive Slave
Clause.195
Against this backdrop, the prospective election of Lincoln as President of the
United States was seen as a direct threat to the preservation of slavery. His famous
words to the effect that “[a] house divided against itself cannot stand, . . . [the] government cannot endure, permanently half slave and half free,”196 had been registered
in the South. In fact, although Lincoln had not had the opportunity to take any actual anti-slavery measures before his election, the southern propagandist material of
191 KELLY, supra note 31, at 263; FARBER, supra note 238, at 9-11.
192 See, e.g., The South Carolina protest against the tariff of 1828 (December 19, 1828), in 4 Elliot, DEBATES,
supra note 59, at 581. “8th . . . because South Carolina, from her climate, situation, and peculiar institutions, is . . . wholly dependent upon agriculture and commerce, not only for her prosperity, but for her
very existence as a state.” Emphasis added here.
193 Although not oblivious to the plight of the enslaved, the delegates at the Philadelphia Convention had
been primarily concerned with creating a social order for whites, not with ending slavery. See William
W. Freehling, The Founding Fathers and Slavery, 77 AM. HIST. REV. 81, 83 (1972) (“Creative energies
poured into designing a political City on the Hill; and the blueprints for utopia came to be the federal
Constitution and American union. When the slavery issue threatened the Philadelphia Constitutional
Convention the Deep South’s ultimatums were quickly met.”).
194 U.S. CONST., art. I, § 2, cl. 3: “Representatives and direct Taxes shall be apportioned among the several
States which may be included within this Union, according to their respective Numbers, which shall be
determined by adding to the whole Number of free Persons, including those bound to Service for a
Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”
195 U.S. CONST., art. IV, § 2, cl. 3: “No Person held to Service or Labour in one State, under the Laws
thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged
from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or
Labour may be due.” In fact, the question whether the federal government could compel individual
states to enforce federal commands also intertwined with the constitutional treatment of slavery in the
context of fugitive slaves. See Prigg v. Pennsylvania, 41 U.S. 539, 615 (1842) (“[t]he States cannot . . . be
compelled to enforce” the provisions of the Fugitive Slave Clause of the Constitution); id. at 625 (holding Pennsylvania personal liberty statute inconsistent with the Fugitive Slave Clause). See also Kentucky
v. Dennison, 65 U.S. 66 (1861) (considering that Congress cannot coerce Ohio Governor to discharge
duty to return fugitive from justice accused of having facilitated slave escape in Kentucky); Ableman v.
Booth, 62 U.S. 506 (1859) (reversing decision by Supreme Court of Wisconsin disregarding Fugitive
Slave Acts of 1793 and 1850 as unconstitutional). See generally Paul Finkelman, Prigg v. Pennsylvania
and Northern State Courts: Anti-Slavery Use of a Pro-Slavery Decision, 25 CIV. WAR HIST. 5 (1979).
196 “A House Divided”: Speech at Springfield, Illinois, June 16, 1858, in 2 COLLECTED WORKS OF LINCOLN, supra
note 1, at 461.
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the time described him and the Republican Party as nothing less than determined to
declare war on the slave-holding South.197
Consequently, as soon as Lincoln’s election was certain, South Carolina declared
its intent to secede from the Union. The legislature of the Palmetto State labeled his
election a “hostile act” towards the “social organization and peculiar interests” of the
slaveholding southern states.198 However, not all southern states had majorities who
were willing to react as dramatically to the election, and it has been suggested the
South Carolina secession was something of a gamble.199 In fact, the secessionists
may have estimated that Lincoln would attempt to forcibly coerce South Carolina to
remain in the Union and, at that moment, the other southern states would secede
too.200 This prediction proved correct when the “border states” of Virginia,
Arkansas, Tennessee, and North Carolina joined the seven states of the Lower
South, which had previously seceded, following the outbreak of the fighting.201
The debates over the federal government’s power to coerce states to remain in the
Union predated, naturally, the final escalation of the situation. While the Supreme Court
held after the Civil War that the states, in accepting the federal Constitution, had waived
the right to secede, this affirmation of the outcome of the war had the obvious benefit of
hindsight.202 The constitutional issues surrounding secession and federal coercion were,
however, debated at length before the conflict became military in nature. As the southern states made known their intention to secede, the question became namely whether
the federal government could coerce them to remain in the Union.
President James Buchanan gave his annual address to Congress a few weeks after
South Carolina’s reaction to Lincoln’s election. He explained his views on the constitutionality of secession and the possibility of federal coercion over seceding states.
While Buchanan thought that secession was unconstitutional, he concluded that the
national government lacked the “power by force of arms to compel a State to remain
in the Union.”203 His conclusion was based on the observation that coercion did not
feature among the enumerated powers of Congress, and that it could not be deemed
“necessary and proper for carrying into execution” those powers.204
197 Porter, supra note 93, at 24:
Mr. Lincoln ADVOCATES BOLDLY AND CLEARLY, a war of sections, a war of the North against
the South, of free States against slave States—a war of extermination—to be continued relentlessly, until
the one or the other shall be subdued, and all the States shall either become free or slave.
198 Resolution to Call the Election of Abraham Lincoln as U.S. President a Hostile Act and to Communicate to
Other Southern States South Carolina’s Desire to Secede from the Union, 9 November 1860. Res. Gen.
Assemb., 1779-1879, S165018 (S.C. Dep’t of Archives & Hist., Columbia, S.C.), available at http://
www.teachingushistory.org/pdfs/lincdoc_000.pdf.
199 WILLIAM W. FREEHLING, 2 THE ROAD TO DISUNION: SECESSIONISTS TRIUMPHANT 1854-1861, at 345-46
(2007).
200 Id.
201 KELLY, supra note 31, at 288.
202 Texas v. White, 74 U.S. 700, 725 (1869) (“The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.”). See generally on secession, Akhil Reed Amar, Some New
World Lessons for the Old World, 58 U. CHI. L. REV. 483 (1991); Cass R. Sunstein, Constitutionalism and
Secession, 58 U. CHI. L. REV. 633 (1991).
203 Fourth Annual Message (December 3, 1860), in 5 MESSAGES AND PAPERS OF THE PRESIDENTS, at 626, 635.
204 U.S. CONST., Art. I, §8.
Federal Coercion and National Constitutional Identity in the United States 1776-1861
353
In Buchanan’s view, coercion by Congress, which he defined as power to make
war against a state, was “at variance with the whole spirit and intent of the
Constitution.”205 To reinforce his argument, he relied on the views of Madison at
the Philadelphia Convention on the impracticability of using force against states,
concluding that the framers had rejected federal coercion.206 Echoing Madison’s later
views, Buchanan thought that serious problems would arise once force had been
used. For him, the federal government would be unable to compel by physical force
the conquered citizenry to abide by the Constitution, including forcing them to elect
the state’s representatives. Buchanan thought that if the Union could not “live in the
affectations of the people,” it would inevitably perish.207 The Union was based on
the people and that the Constitution did not place “the sword . . . in their hand to
preserve it by force.”208
Curiously, Buchanan further argued that the federal executive could not deal with
the issue of secession, because it had lost control of the “machinery of the Federal
Government” in South Carolina. In other words, since there were no more federal
judges or marshals, it was “impracticable”209 for the President to perform his constitutional duty “to take care that the laws be faithfully executed.”210 In his Opinion on
the “Powers of the President on the Execution of the Laws,” Buchanan’s Attorney
General, Jeremiah S. Black, had also advanced this view, explaining the unfortunate
consequences of a situation where federal officers would resign as a result of secession. According to Black, inasmuch as military force could only be deployed in aid of
federal judges and marshals, in their absence there could be no enforcement of the
laws by force.211 Buchanan’s apathetic conclusion was thus that he only had executive powers, “so far as this may be practicable,”212 and that he did not have authority
to decide on the relations between the federal government and South Carolina.
In early 1861, Jefferson Davis, Senator from Mississippi and the leading southern
secessionist, gave a farewell address to the Senate following his state’s decision to secede. He argued that the national government would not have the authority to try to
force a seceding state to remain in the Union. Davis remarked that there was a fundamental difference in coercing a state which was a member of the Union, referring to
the Nullification Crisis of 1832, as opposed to coercing a state which had seceded.
He admitted that President Jackson had spoken in his Proclamation of the constitutional imperative of “executing the laws of the United States” as a source of authority
205 Fourth Annual Message (December 3, 1860), in 5 MESSAGES AND PAPERS OF THE PRESIDENTS, at 626, 636.
206 Incidentally, 132 years later, the U.S. Supreme Court plurality opinion in New York v. United States,
505 U.S. 144 (1992) (holding Congress lacks power to compel states to legislate), would again make
this argument.
207 Fourth Annual Message (December 3, 1860), in 5 MESSAGES AND PAPERS OF THE PRESIDENTS, at 626, 636.
See also Power of the President in Executing the Laws, 9 Op. Att’y Gen. 516, 525-26 (1860) (“. . . the
Union must utterly perish at the moment when Congress shall arm one part of the people against another, for any purpose beyond that of merely protecting the General Government in the exercise of its
proper constitutional functions.”)
208 Fourth Annual Message (December 3, 1860), in 5 MESSAGES AND PAPERS OF THE PRESIDENTS, at 626, 636.
209 Id. at 634.
210 See U.S. CONST., art. II, § 3.
211 Power of the President in Executing the Laws, 9 Op. Att’y Gen. 516, 523 (1860).
212 Fourth Annual Message (December 3, 1860), in 5 MESSAGES AND PAPERS OF THE PRESIDENTS, at 626, 635.
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for the federal executive to coerce a state.213 However, by seceding from the Union,
Davis reasoned, southern states would become “foreign countries” and that “[i]f it be
the purpose of gentlemen, they may make war against a State which has withdrawn
from the Union; but there are no laws of the United States to be executed within the
limits of a seceded State.”214
According to Davis, states were absolutely free to secede from the Union. For
him, secession differed from earlier state attempts at nullification of federal laws; in
fact, the two were “antagonistic principles.”215 Nullification entailed disregard of federal law while remaining in the Union, where the agent of sovereign states, the
Union, had failed to respect its constitutional obligations; secession, by contrast, implied a decision by a sovereign state to “reclaim the grants which it has made to any
agent whatsoever,” and, as a result, a withdrawal from the Union.216 Davis argued,
like Buchanan, that the right to withdraw from the Union was complemented by the
right not to be coerced by the national government, because the framers had rejected
the existence of such power at the Constitutional Convention.217
Indeed, at the congressional debates of December 1860, the views of Madison,
Hamilton, and Mason – among others – were mustered as original authority to support the absence of a federal power to coerce states.218 At the time, the issue was
also a burning topic for journalists, orators, and state legislatures.219 The view that
the framers had rejected such a federal power was also disseminated in pamphlets –
addressed “To the men of the South” with instructions “Read and send to your
Neighbor” – in order to gain support for secession.220
Those aspiring for southern independence had developed various legal theories to
justify withdrawal from the Union. On the one hand, the right of revolution was invoked as “a natural right resting upon the Law of God;”221 such a right was inherent
in the people of any state. This natural right was also embodied in the Declaration of
Independence: “. . . whenever any Form of Government becomes destructive of [the
unalienable rights of life, liberty, and the pursuit of happiness]. . . it is the Right of
the People to alter or to abolish it. . .”222 On the other hand, the right of secession was
described as “a civil right founded upon the Constitution.”223 That said, many
213 Jefferson Davis’s Farewell Address (Jan. 21, 1861), in CHRISTOPHER WALDREP & LYNNE CURRY, THE
CONSTITUTION AND THE NATION: THE CIVIL WAR AND AMERICAN CONSTITUTIONALISM 1830-1890, at 110
(2003).
214 Id. (emphasis added here).
215 Jefferson Davis’s Farewell Address (Jan. 21, 1861), in WALDREP & CURRY, supra note 213, at 109.
216 Id.
217 See, e.g. Jefferson Davis, The Doctrine of State Rights, 150 N. AM. REV., 205, 212 (1890); KELLY, supra
note 31, at 281-82.
218 CARPENTER, supra note 93, at 216.
219 Id.
220 Porter, supra note 93, at 15-16.
221 Provisional Governor of Kentucky George W. Johnson writing to Jefferson Davis (Nov. 21, 1861), 1
JOURNAL OF THE CONGRESS OF THE CONFEDERATE STATES OF AMERICA 1861-1865, S. DOC. NO. 58-234, 2d
SESS., at 541 (1904).
222 See also CARPENTER, supra note 93, at 196.
223 Provisional Governor of Kentucky George W. Johnson writing to Jefferson Davis (Nov. 21, 1861), 1
JOURNAL OF THE CONGRESS OF THE CONFEDERATE STATES OF AMERICA 1861-1865, S. DOC. NO. 58-234, 2d
SESS., at 541 (1904).
Federal Coercion and National Constitutional Identity in the United States 1776-1861
355
ignored the legalistic distinction and, instead of speaking of a right to secede under
the Constitution, the right of revolution with its “thrill of 1776” was increasingly advanced as a more easily comprehensible justification for secession.224 However, in
the 1860s these central ideals of American liberty and democracy would ultimately
be perceived as a threat by the federal government.225
When Lincoln was elected President in late 1860, he took a very different view
from those held by Buchanan and Davis. Shortly before assuming office, Lincoln
gave a speech in Indianapolis where he reflected on the federal coercion power at
length:
“What, then, is ‘coercion’? What is ‘invasion’? Would the marching of an army
into South Carolina, for instance, without the consent of her people, and in
hostility against them, be coercion or invasion? I very frankly say, I think it
would be invasion, and it would be coercion too, if the people of that country
were forced to submit. But if the Government, for instance, but simply insists
upon holding its own forts, or retaking those forts which belong to it, or the
enforcement of the laws of the United States in the collection of duties upon
foreign importations, or even the withdrawal of the mails from those portions
of the country where the mails themselves are habitually violated; would any
or all of these things be coercion? Do the lovers of the Union contend that
they will resist coercion or invasion of any State, understanding that any or all
of these would be coercing or invading a State? If they do, then it occurs to me
that the means for the preservation of the Union they so greatly love, in their
own estimation, is of a very thin and airy character.”226
Lincoln was determined to preserve the Union and he considered that the
Constitution empowered him to do so. In his inaugural address, he solemnly stated
“that resolves and ordinances to [get out of the Union] are legally void,” referring
doubtless to the South Carolina Ordinance of Secession, and stated that “acts of violence, within any State or States, against the authority of the United States are insurrectionary or revolutionary, according to circumstances.”227 Relying on this view, he
considered that illegal acts of secession were not valid and, thus, the Union was constitutionally “unbroken.”228
Thus, Lincoln’s view differed radically from the theory of “non-coercion,” advanced by the southern secessionists. The Republican President considered that the
Union was perpetual and that to allow secession simply meant anarchy.229 For him,
224 FREEHLING, supra note 199, at 346.
225 Roman J. Hoyos, Peaceful Revolution and Popular Sovereignty: Reassessing the Constitutionality of Southern
Secession, in SIGNPOSTS: NEW DIRECTIONS IN SOUTHERN LEGAL HISTORY 258 (Sally E. Hadden & Patricia
Hagler Minter eds., 2013).
226 Speech from the Balcony of the Bates House at Indianapolis, Indiana, February 11, 1861, in 4 COLLECTED
WORKS OF LINCOLN, supra note 1, at 194, 195 (audience cheers omitted).
227 First Inaugural Address – Final Text, March 4, 1861, in 4 COLLECTED WORKS OF LINCOLN, supra note 1, at
262, 265.
228 Id.
229 First Inaugural Address – Final Text, March 4, 1861, in 4 COLLECTED WORKS OF LINCOLN, supra note 1, at
262, 264, 268.
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it was unthinkable that a minority could destroy the Union. Refuting also the compact theory as interpreted by secessionists, Lincoln advanced a nationalist argument
that precluded secession: “The States have their status IN the Union, and they have
no other legal status. If they break from this, they can only do so against law, and by
revolution.”230 Thus, while Lincoln recognized the inherent right of states to rebellion, in his view a state could not withdraw from the Union by a simple unilateral decision, because such an attempt to alter their status would, itself, violate the
Constitution. As President of the United States, Lincoln considered that he had a
constitutional duty to ensure that “the laws of the Union be faithfully executed in all
the States,” which meant, in other words, that he was obligated to enforce compliance with federal law, by coercion if necessary.231
Finally, Lincoln, like Jackson three decades earlier, appealed to his “dissatisfied
fellow countrymen,” in other words to the people, that they would not force his
hand in the conflict. While providing assurances that the government would not assail them, the President made clear that his position in fact required of him to resort
to force, if necessary, to prevent secession. His “promise” of coercion was evidently
directed at individuals, the people, rather than any seceding state or states: “You
have no oath registered in Heaven to destroy the government, while I shall have the
most solemn one to ‘preserve, protect and defend’ it.”232 This interpretation of the
Constitution did not prevent the escalation of the conflict, however. In fact, while
Lincoln had first described his coercive actions as limited to “hold[ing], occupy[ing], and possess[ing] the property, and places belonging to the government,
and to collect[ing] the duties and imposts,” he would later refer to the measures
taken as “call[ing] out the war power.”233 As the first gunshots were fired at Fort
Sumter in Charleston Harbor on April 12, 1861, signaling the outbreak of the Civil
War, it became clear that arms, not laws, would ultimately resolve the constitutional
disagreement.
I V . C O N C L U S I O N : F E D E R A L C O E RCION A ND T HE E MERG ENCE OF
N A T I O N A L C O N S T IT U T I O N A L I D E N T I T Y
During the period from the Revolution to the Civil War, the national government’s
power over its subjects was increasingly seen as involving a power to coerce not only
states, the constituent members of the Union, but also people, the new subjects of
the federal government. This change reflects the transition from the system of
230 Message to Congress in Special Session, July 4, 1861, in 4 COLLECTED WORKS OF LINCOLN, supra note 1, at
421, 434.
231 Id. As President Jackson had his double standards with regard to the Cherokee Indians, so did Lincoln,
however. For example, Lincoln deliberately disregarded Chief Justice Taney’s opinion in Ex Parte
Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861), which ruled that the suspension of the writ of habeas
corpus by Lincoln was unconstitutional, thereby arguably failing to “faithfully execute the laws”. Lincoln
himself belittled this failure: “To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” Message to Congress in Special
Session, July 4, 1861, in 4 COLLECTED WORKS OF LINCOLN, supra note 1, at 421, 430.
232 First Inaugural Address – Final Text, March 4, 1861, in 4 COLLECTED WORKS OF LINCOLN, supra note 1,
at 262, 271. Emphasis in original.
233 See id. at 266; Message to Congress in Special Session, July 4, 1861, in 4 COLLECTED WORKS OF LINCOLN, supra note 1, at 421, 426.
Federal Coercion and National Constitutional Identity in the United States 1776-1861
357
governance under the Articles of Confederation to that involving a more powerful
national government under the Constitution. Yet it took a long while, innumerable
instances of state resistance, and an intervening civil war for this idea of federal coercion to slowly take root with the emergence of a stronger constitutional identity at
the national level. Indeed, even 90 years after the adoption of the Constitution, the
Supreme Court would still note that “[i]t seems to be often overlooked that a national constitution has been adopted in this country, establishing a real government
therein, operating upon persons and territory and things; and which, moreover, is, or
should be, as dear to every American citizen as his State government is.”234
However, by that time the Court no longer had any doubts about the federal government’s power to ensure compliance with federal law, by force if necessary.235
Furthermore, after the Civil War, the ability of the federal government to coerce
its subjects no longer seemed to depend on whether the opposition consists of one
person, a large mob, or the majority of the population of an entire state.236 Thus,
from a purely legal standpoint, the extent to which the general obligation to follow
federal law applies both to the states and to individuals, distinguishing between the
different subjects of federal authority for the purposes of coercion, appears to have
become somewhat academic.237 At the same time, the federal government’s willingness to resort to coercion to execute federal law or the decisions of the federal judiciary in the period under consideration does not seem to have depended on whether
the resistance to federal authority was conceived as individual or collective. That
said, the early authority for the federal coercion power was often derived not from a
settled constitutional understanding, but largely from political necessity, which ultimately depended on the relative priority attached to the need to minimize “the human price of coercion,”238 as opposed to that of preserving the integrity of the
federal system. Indeed, the early politico-legal debates on the nature of federal coercion were characterized equally by theories of federalism intended to ensure the
234 Ex Parte Siebold, 100 U.S. 371, 394-95 (1879) (affirming constitutionality of power of U.S. marshal to
arrest persons contravening federal law on supervision of Congressional elections). See also In Re Debs,
158 U.S. 564 (1895) (upholding federal court injunction against striking workers forcibly obstructing
railroad traffic).
235 In Re Debs, 158 U.S. 564, 599 (1895) (“[T]he government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and
functions that belong to it. This necessarily involves the power to command obedience to its laws, and
hence the power to keep the peace to that extent.”).
236 In Re Debs, 158 U.S. 564, 597 (1895) (“It surely cannot be seriously contended that the court has jurisdiction to enjoin the obstruction of a highway by one person, but that its jurisdiction ceases when the
obstruction is by a hundred persons.”).
237 The redundancy of an analysis of the primary subjects of federal power is already reflected in the explanation of Chief Justice Taney, as he discusses the Oath Clause of the Constitution in Ableman v. Booth,
62 U.S. 506, 525 (1858):
“Now, it certainly can be no humiliation to the citizen of a republic to yield a ready obedience to the
laws as administered by the constituted authorities. On the contrary, it is among his first and highest
duties as a citizen because free government cannot exist without it. Nor can it be inconsistent with the
dignity of a sovereign State to observe faithfully, and in the spirit of sincerity and truth, the compact into
which it voluntarily entered when it became a State of this Union. On the contrary the highest honor of
sovereignty is untarnished faith.”
238 DANIEL FARBER, LINCOLN’S CONSTITUTION 93 (2003).
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legitimacy of the federal government as they were by pragmatism aiming at upholding the new constitutional order.
Finally, the supporters of an effective federal government often favored a strong
federal coercion power on paper, while resenting the idea of deploying actual force.
It was understood that while federal coercion purports to act as the ultimate guarantee for the rule of law in the organization of federal relations, the rule of law is supposed to provide, in and of itself, a sufficient basis for those relations. In fact,
resorting to actual coercion in a federal polity based on the rule of law may fundamentally disrupt the legitimacy of that system which the mere threat of coercion is
supposed to preserve. As the Supreme Court observed some time after the Civil
War:
It is doubtless true that inter arma leges silent, and in the throes of rebellion the
processes of civil courts are of little avail, for the power of the courts rests on
the general support of the people, and their recognition of the fact that peaceful remedies are the true resort for the correction of wrongs.239
Lincoln’s perceptive question as to whether a government is always either too
strong or too weak to prosper and to secure the welfare of its people cannot be conclusively answered here. However, the foregoing exposition of the volatile era
stretching from the Declaration of Independence up to the Civil War testifies to the
transformation of the national constitutional identity in the United States and its implications for the power of the national government to coerce its subjects, be they
states or individuals. It also demonstrates that while a strong federal government
must occasionally assert its will in the national interest, the consequences of coercion
can be disastrous both for the government and its subjects. This general observation,
drawn from the past, should surely also continue to inform any constitutional interpretation of federal coercive powers — and their use — in the future.
239 In Re Debs, 158 U.S. 564, 597 (1895).