States' Rights and the Union Imperium in Imperio, 1776-1876 by Forrest McDonald University Press of Kansas - 2000 * 296 pages $29.95
Reviewed by James Ostrowski
Historian Forrest McDonald has produced this fine survey of how the idea of divided sovereignty has played out in American history. "Imperium in Imperio" means "sovereignty within sovereignty, the division of sovereignty within a single jurisdiction." They said it could not be donethat sovereignty could not be divided. In 1789, however, the Americans tried it anyway and with mixed results. The people of the states created a regime that divided sovereignty-supreme authority-between the federal and state governments.
That being the case, it seems silly to ask, "Which came first, the states or the federal government?" Abraham Lincoln asked this question and answered, "the federal government"; and McDonald skewers him. Members of the Continental Congress "were there as agents of existing political societies, and in the nature of things, agents cannot authorize their principals to do anything."
For a while, the original vision held true, and the size and power of the federal government was restrained. Yes, there was that pesky Federalist era, but when they took power in 1801, the radical Republicans did "strive to strip down the machinery that Hamilton and the Federalists had put in place, and to some extent they succeeded." Taxes were axed. The Alien and Sedition Acts expired and pardons were issued. They reduced the army to a mere 3,350 men.
When war with England came in 1812, the United States was unprepared with its small army and small treasury. Although President Madison called up the militias of the states, New England refused to comply. McDonald believes this war showed the defects in the militia system. However, militias are designed to defend the homeland, not to attack foreign countries. Thus, foreign countries do not feel threatened by them.
Paradoxically, McDonald cites New England's reaction to the War of 1812 as evidence of the weakness of the Jeffersonian system. That region sat on its hands during the war in a virtual state of secession, if not treason. The Yankees "conducted a lucrative trade with the enemy." Lincoln's hero, Daniel Webster, decried conscription proposals. Sounding like Jefferson, he asked, "Where is [conscription] written in the constitution?" The New England states met in convention to discuss secession. That talk fizzled, but the resolution they passed avowed that state governments may interpose themselves between their own citizens and arbitrary federal power.
Before the Civil War, the states' rights faction was "triumphant." Andrew Jackson "resisted efforts by Congress to extend the scope of the federal …