Federal Coercion and National Constitutional Identity in the United States 1776-1861

Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!

jgoodguy

Banished Forever
-:- A Mime -:-
is a terrible thing...
Don’t feed the Mime
Joined
Aug 17, 2011
Messages
35,519
Location
Birmingham, Alabama
Faulty conclusion. Both Thomas Jefferson and James Madison said the nation was fully justified in coercing recalcitrant states. Jefferson, in fact, mused that the Navy might be the best instrument to use.
Do you have a link or citation for this? Thanks in advance.
"It is remarkable how closely the nullifiers who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them. You have noticed what he says in his letters to Monroe & Carrington Pages 43 & 203, Vol. 2, with respect to the powers of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover that it was not necessary to find a right to coerce in the Federal Articles, that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject." [James Madison to Nicholas Trist, 23 Dec 1832]

"It has been so often said, as to be generally believed, that Congress have no power by the Confederation to enforce anything; for example, contributions of money. It was not necessary to give them that power expressly; they have it by the law of nature. When two parties make a compact, there results to each a power of compelling the other to execute it. Compulsion was never so easy as in our case, where a single frigate would soon levy on the commerce of any State the deficiency of its contributions." [Thomas Jefferson to Edward Carrington, 4 Aug 1787]

"There never will be money in the treasury till the confederacy shews it's teeth. The states must see the rod; perhaps it must be felt by some one of them. I am persuaded all of them would rejoice to see every one obliged to furnish it's contributions. It is not the difficulty of furnishing them which beggars the treasury, but the fear that others will not furnish as much. Every national citizen must wish to see an effective instrument of coercion, & should fear to see it on any other element but the water. A naval force can never endanger our liberties, nor occasion bloodshed; a land force would do both." [Thomas Jefferson to James Monroe, 11 Aug 1786]
Late to the party for the advance appreciation; I will have to thank you after the fact for providing this source:smile:
No, this isn't a faulty conclusion. According to the records of the Convention, the delegates specifically voted against inserting a clause in the Constitution that would have allowed the federal government to coerce a delinquent state. They believed that such a clause would not be in the best interest of the country. Furthermore, this matter was actually referred to by President Buchanan in his final State of the Union Address.
It is a faulty conclusion caused by a misunderstanding of the proposal and discussion.

They were talking about using military force to force states to provide requisitions made by the Feds, such as forcing states to hand over tariff revenue. They accepted the use of military force to put down a rebellion.

On June 20, 1787, in the Constitutional Convention, George Mason said, "The principal objections agst. that of Mr. R. were the want of power & the want of practicability. There can be no weight in the first as the fiat is not to be here, but in the people. He thought with his colleague Mr. R. that there were besides certain crisises, in which all the ordinary cautions yielded to public necessity. He gave as an example, the eventual Treaty with G.B. in forming which the Comrs. of the U. S. had boldly disregarded the improvident shackles of Congs. had given to their Country an honorable & happy peace, and instead of being censured for the transgression of their powers, had raised to themselves a monument more durable than brass. The impracticability of gaining the public concurrence he thought was still more groundless. [Mr. Lansing] had cited the attempts of Congress to gain an enlargement of their powers, and had inferred from the miscarriage of these attempts, the hopelessness of the plan which he [Mr. L] opposed. He thought a very different inference ought to have been drawn; viz that the plan which [Mr. L] espoused, and which proposed to augment the powers of Congress, never could be expected to succeed. He meant not to throw any reflections on Congs. as a body, much less on any particular members of it. He meant however to speak his sentiments without reserve on this subject; it was a privilege of Age, and perhaps the only compensation which nature had given for the privation of so many other enjoyments: and he should not scruple to exercise it freely. Is it to be thought that the people of America, so watchful over their interests; so jealous of their liberties, will give up their all, will surrender both the sword and the purse, to the same body, and that too not chosen immediately by themselves? They never will. They never ought. Will they trust such a body, with the regulation of their trade, with the regulation of their taxes; with all the other great powers, which are in contemplation? Will they give unbounded confidence to a secret Journal-to the intrigues-to the factions which in the nature of things appertain to such an Assembly? If any man doubts the existence of these characters of Congress, let him consult their Journals for the years 78, 79, & 80. -It will be said, that if the people are averse to parting with power, why is it hoped that they will part with it to a National Legislature. The proper answer is that in this case they do not part with power: they only transfer it from one sett of immediate Representatives to another sett. -Much has been said of the unsettled state of the mind of the people, he believed the mind of the people of America, as elsewhere, was unsettled as to some points; but settled as to others. In two points he was sure it was well settled. 1. in an attachment to Republican Government. 2. in an attachment to more than one branch in the Legislature. Their constitutions accord so generally in both these circumstances, that they seem almost to have been preconcerted. This must either have been a miracle, or have resulted from the genius of the people. The only exceptions to the establishmt. of two branches in the Legislatures are the State of Pa. & Congs. and the latter the only single one not chosen by the people themselves. What has been the consequence? The people have been constantly averse to giving that Body further powers-It was acknowledged by [Mr. Patterson] that his plan could not be enforced without military coertion. Does he consider the force of this concession. The most jarring elements of Nature; fire & water themselves are not more incompatible that such a mixture of civil liberty and military execution. Will the militia march from one State to another, in order to collect the arrears of taxes from the delinquent members of the Republic? Will they maintain an army for this purpose? Will not the Citizens of the invaded State assist one another till they rise as one Man, and shake off the Union altogether. Rebellion is the only case, in which the military force of the State can be properly exerted agst. its Citizens. In one point of view he was struck with horror at the prospect of recurring to this expedient. To punish the non- payment of taxes with death, was a severity not yet adopted by despotism itself: yet this unexampled cruelty would be mercy compared to a military collection of revenue, in which the bayonet could make no discrimination between the innocent and the guilty. He took this occasion to repeat, that notwithstanding his solicitude to establish a national Government, he never would agree to abolish the State Govts. or render them absolutely insignificant. They were as necessary as the Genl. Govt. and he would be equally careful to preserve them. He was aware of the difficulty of drawing the line between them, but hoped it was not insurmountable. The Convention, tho' comprising so many distinguished characters, could not be expected to make a faultless Govt. And he would prefer trusting to posterity the amendment of its defects, rather than to push the experiment too far."

In The Federalist Papers #15, Hamilton wrote, "Government implies the power of making laws. 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. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: 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 first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it.

"There was a time when we were told that breaches, by the States, of the regulations of the federal authority were not to be expected; that a sense of common interest would preside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the Union. This language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. It at all times betrayed an ignorance of the true springs by which human conduct is actuated, and belied the original inducements to the establishment of civil power. Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity."
Thanks! As you say the nullifiers do a bunch of selective quoting.
 

jgoodguy

Banished Forever
-:- A Mime -:-
is a terrible thing...
Don’t feed the Mime
Joined
Aug 17, 2011
Messages
35,519
Location
Birmingham, Alabama
Federal Coercion and National Constitutional Identity in the United States 1776-1861

In the Civil War, the policy of the Lincoln administration was that States did not leave the Union, but individuals can be prosecuted for treason and insurrection-even the officials of the State in question. In short, a State cannot be coerced, but the leaders of that State could. The abstraction of 'State' did not help the secessionists who were reduced from patriots to mere criminals.

A B S T R A C T
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.​
 
Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!

jgoodguy

Banished Forever
-:- A Mime -:-
is a terrible thing...
Don’t feed the Mime
Joined
Aug 17, 2011
Messages
35,519
Location
Birmingham, Alabama
Again, State Rights are not relevant if the Federal Government has control of individuals.
Federal Coercion and National Constitutional Identity in the United States 1776-1861

I . INTRODUCTION: THE EVOLUTION OF FEDERAL COERCION

“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 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.

Footnotes
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 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).
 
Last edited:

jgoodguy

Banished Forever
-:- A Mime -:-
is a terrible thing...
Don’t feed the Mime
Joined
Aug 17, 2011
Messages
35,519
Location
Birmingham, Alabama
Federal Coercion and National Constitutional Identity in the United States 1776-1861 P327 Emphasis mine.

One of the problems looking at the past for Founder ideals is that things changed. The ideals of the Revolution of ideal republics were soiled by recalcitrant States, even after the Constitutional convention States could not be depended on to suppress insurrections resulting in a series of Militia Acts(1792,1795) and the Insurrection Act of 1807. Looking for ideal States Rights in the past is simply not feasible. The coercive power of the Federal government increased due to State failures, not some imagined corrosive ideology.

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.
 
Last edited:

jgoodguy

Banished Forever
-:- A Mime -:-
is a terrible thing...
Don’t feed the Mime
Joined
Aug 17, 2011
Messages
35,519
Location
Birmingham, Alabama
Federal Coercion and National Constitutional Identity in the United States 1776-1861 P328 Emphasis mine.

Another problem with looking to a mystical past back in the mists of the founding is that the nation changed. Nationalism, the idea of the US as a consolidated nation rather than a confederacy or compact of States took time to develop. More on the inability of States to cooperate even when their existence was threatened. IMHO the 1860-61 secession failed because it was a 'solution' to a consolidated government when a consolidated government was essential for survival.

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 fed- eral 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 na- tional 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.

II. FEDERAL COERCION DURING THE CONFEDERATION AND AT
THE FOUNDING

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 constitu- ent states of this “firm league of friendship”6 retained the traditional attributes of sov- ereignty,7 the Continental Congress resembling “an international assembly of 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 non- compliance 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
Footnotes
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 assem- bled.” See also MERRILL JENSEN, THE ARTICLES OF CONFEDERATION: AN INTERPRETATION OF THE SOCIAL- CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION 1774-1781, at 161-76 (1940).

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).
 
Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!

wausaubob

Major
Joined
Apr 4, 2017
Messages
8,441
Location
Denver, CO
In the constitutional era, the United States probably lacked the physical ability to coerce a determined coalition of people representing the bulk of each of four states.
The people of Massachusetts, New York, Pennsylvania, and Virginia, if sufficiently united within their respective states, would have been difficult for the remaining 12 states to overcome.
By the time there were 34 states, a coalition in any individual state, was not a serious obstacle to coercion. People in New York would have been difficult to physically coerce, but they needed economic connection to the rest of the US, so the means of coercion would have been an embargo.
This was tacitly acknowledged by the secessionists in 1860, who took control of several state governments and formed a coalition against the United States, an act directly prohibited by the constitution.
In a contract between two parties, the concept of mutual benefit is the usual means of adjusting contract performance. Resort to third party enforcement defeats the purpose of mutual benefit.
But in government, when there are numerous subgroups contending for advantage, there will be constant friction between groups asking for protection from coercion, and those asking for assistance in coercion. A government dependent on unanimity is either subject to disintegration or paralysis.
Neither group in the Civil War argued against the power of coercion, though one faction argued that those being coerced were not entitled to full human recognition. But in essence the argument was about who should have the power of coercion and who should be the target of coercion. Neither side opposed coercing individual and groups of Indians.
They disagreed about coercing individuals who opposed slavery and opposing individuals who supported slavery.
Without a power of coercion the Confederates would have eventually found groups in Virginia wanting to end slavery and create a tariff union, and people in Texas demanding a national subsidized railroad, and no means to prevent disintegration.
 
Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!
Top