By Ryan McMaken
A recurring theme in American politics is the cynical use of federal power by those who simultaneously pretend to favor “states’ rights” or “local control.” We see this today when Republicans one minute say they favor local control with gun laws or Obamacare—and then demand the federal government impose nationwide drug prohibitions. We see it among Democrats who want local control over “sanctuary cities” for illegal immigrants, but then denounce the idea that states ought to decide for themselves on abortion policy.
The basic logic goes like this: if you’re negotiating from a position of relative weakness at the federal level, take a faux “principled” stand in favor of local or state sovereignty. However, once it looks like you might have the political power necessary to force federal laws down everyone’s throat, declare the issue to be “too important to be left up to state or local control.”
This habit of declaring every “important” issue to be a matter for federal intervention is very much the story of American politics over the past century. From alcohol prohibition to social welfare benefits to an out-of-control FBI, American policymakers never tire of “discovering” new ways that every alleged problem must be solved by a federal “solution.”
This problem pre-dates the twentieth century, however. In the nineteenth century, slavery was that issue that was “too important” to be left up to local control. Instead, both abolitionists and the “slavocracy”—to use a term employed by Murray Rothbard—sought ways to use federal power to protect their own interests.
This is especially notable in the case of the slave power, of course, because proslavery activists often claimed to hold a principled opposition to federal power. There was often nothing principled about it, however. Slave owners tended to support federal intervention when it promoted and protected slavery. They opposed federal power when federal law threatened the preservation or extension of slavery.
The Slave Power Wanted a More Activist Federal Government to Enforce the Fugitive Slave Laws
There are at least two ways proslavery advocates demanded more federal power to promote slavery.
The first is the fact that the slave powers wanted an active federal government to enforce the fugitive slave laws. The original 1777 constitution—the “Articles of Confederation”—said nothing about slavery and left policy up to the individual states. The new constitution, however—being, as it was, the instrument of counter-revolutionaries seeking a strong central government—included the fugitive slave clause. This clause allowed the federal government to directly intervene in state policy to ensure the return of “property” to slave drivers. Naturally, the slave powers demanded enthusiastic federal enforcement of this clause, and supported legislation to further strengthen the federal hand. They supported the Fugitive Slave Act of 1850, for example, which sought to coerce local officials into helping federal agents kidnap escaped slaves and return them to their “owners.”
Many state and local governments in free states asserted their own local sovereignty and refused to assist federal agents. As a result, the slave powers concluded free states were exercising “too much” state sovereignty, and a lack of robust federal intervention in the states was specifically invoked as a reason for secession by some southern states.
The Slave Power Opposed Local Sovereignty in the Territories
The second way that the slavocracy agitated for more federal power involved how the federal government regulated new territories as the federal government annexed new frontier lands. These were lands that were part of the United States, but had not yet attained the status of statehood.
In spite of the best efforts of those behind the Missouri Compromise (1820), the problem of slavery in the new western territories was not laid to rest. Debates over slavery’s spread westward continued, and were enflamed by the annexation of Texas, then by the Mexican cession following the US war with Mexico. The final drama came with the Kansas-Nebraska act in 1854.
At the heart of the matter was a disagreement over how much power the federal government possessed to either outlaw slavery in the territories or ensure its legality. There were, in fact, no fewer than three theories of what the US constitution authorized the federal government to do in the territories.
The first theory was the so-called “free-soil” theory. Proponents of this position claimed Congress was obligated to outlaw slavery in the territories. Proponents based this position on a reading of the Fifth Amendments which states “No person shall be . .. deprived of … liberty … without due process of law.” Free-soil advocates claimed this clause prohibited slavery in territories, the District of Columbia, and all other places under the exclusive jurisdiction of the federal government. This position was favored by the most vehement antislavery activists.
The second theory was popularized and developed by John C. Calhoun. Calhoun claimed, as summarized by Robert R. Russel, that the territories were “the common property of the states, as co-owners,” and that the federal government could only act in the territories as a “an agent or trustee” of the states.1 For Calhoun, this meant the federal government was obliged to keep slavery legal in the territories. Key to Calhoun’s position was the insistence that territorial governments were mere creations of Congress and could not decide for themselves whether or not slavery would be legal. Thus it fell on the federal government to use its power to enforce legal slavery in the territories. Calhoun regarded efforts by territorial settlers to assert local self-determination as illegitimate. He dismissed these activists as “free-soil adventurers” and proponents of “squatter sovereignty.” In short, the Calhounites, as described by historian Robert Childers, launched an “offensive against territorial self-government.”
A third position was known as the “popular sovereignty” position or the “Cass doctrine.” This theory stated, according to Russel:
[Congress] had no constitutional authority to regulate [a territory’s] internal policies in matters not put under federal jurisdiction by the Constitution. The regulation of these latter matters must be left to the people of the territories themselves acting through their elected representatives and whether or not to permit slavery was one of these matters of local, internal concern.2
The popular sovereignty position has the virtue of being the only of the three that refuses to grant the federal government powers not granted it in the constitution. The Calhounites and the free-soil activists, on the other hand, claimed that since the territories were not states, the federal government could exercise powers directly in the territories above and beyond what was listed among the few enumerated federal powers in the constitution.
Local Popular Sovereignty was the “Straightforward Solution”
The popular sovereignty position naturally appealed to many Americans who had become accustomed to supporting a decentralized approach to settling disputes over slavery. It is ironic, then, that the slave power, which had claimed to oppose federal power against “states’ rights” embraced federal power against local sovereignty in the territories. The distinction made by Calhoun and others rested on the arbitrary claim that true sovereignty rested only with states. Smaller or less formal units of government were declared unworthy of any recognition of their sovereignty, and thus, in the Calhounite view, can be placed directly under federal control.
Murray Rothbard noticed the contradiction:
Not only did the expansionist aim of the slavocracy to protect slavery by federal fiat in the territories as “property” aim to foist the immoral system of slavery on Western territories; it even violated the principles of states’ rights to which the South was supposedly devoted—and which would logically have led to a “popular sovereignty” doctrine.
According to Rothbard, popular sovereignty was the “simple and straightforward solution.” The matter became more complicated in 1857 with the Supreme Court’s Dred Scott decision. Part of the ruling stated that slavery could not be legally excluded from territories. As a result, Senator Stephen Douglas of Illinois attempted a middle path known as the “Freeport doctrine” which stated that territorial government could simply elect to not pass legislation that favored slavery, without explicitly outlawing it. This allowed Douglas to claim he supported both the Supreme Court and popular sovereignty.
Nonetheless, the Dred Scott decision had struck a blow for the slavocracy by confirming federal control over internal matters in territories. As Rothbard notes, this forced advocates of local sovereignty in the territories to resort to nullification as a means of asserting self-determination. Moreover, the SCOTUS’s decision to remove popular sovereignty as a potential legal option helped set the stage for the chaotic events that led to Bleeding Kansas.
But why had the most vehement proslavery activists come down so hard against popular sovereignty? It is likely the activists suspected they were on the losing side in the territories. This was important, of course, because if slavery lost in the territories, these areas would eventually become free states, and that would swing the balance of the US Senate against slavery. By 1850, California had entered the Union as a free state, and the status of slavery in New Mexico was an open question. The more populous North was furnishing far larger numbers of migrants into the new territories. Were popular sovereignty allowed to be the deciding factor, then, it was likely that many of these territories would have surely outlawed slavery at the territorial levels. Thus, proslavery activists sought to find ways to prevent self-government by ordinary territorial residents.
New Mexico had been an especially problematic case for the slave powers. As explained by Childers, the Calhounites rejected the idea that “Mexicans” in New Mexico—i.e., Hispanic Americans in areas recently stolen from Mexico—ought to be allowed to govern themselves. Many “southerners accused Mexicans of manipulating the political process in an effort to bar the introduction of slavery.” Slavery had been officially illegal in Mexico, and few New Mexico residents appeared to be enthusiastic about legalizing American-style slavery. While indentured servitude and de facto debt slavery known as “peonage” existed among the Hispanic population, this was not regarded by Calhounites as an acceptable substitute for race-based chattel slavery.3Slavery advocates subsequently looked for ways to deny local self-government to the non-Anglos and to allow for time for more non-Hispanic white southerners to move to the territory.
Simply put, many slavery advocates felt they were losing the demographic war and so could not simply allow incoming territorial migrants to decide on slavery for themselves. The effort to extend slavery to the territories—whether New Mexico or Kansas or Nebraska—often became a matter of using federal power to ensure the continued legality of slavery. The fact that so many of these appeals to federal power came from activists who so often appealed to “states’ rights” should not, of course, shock modern observers. A resort to federal power has long been a tactic employed by those with power at the federal level, regardless of whether or not such appeals can be reconciled with one’s professed ideology.
About the author: Ryan McMaken (@ryanmcmaken) is executive editor at the Mises Institute. Send him your article submissions for the Mises Wire and Power and Market, but read article guidelines first. Ryan has a bachelor’s degree in economics and a master’s degree in public policy and international relations from the University of Colorado. He was a housing economist for the State of Colorado. He is the author of Breaking Away: The Case of Secession, Radical Decentralization, and Smaller Polities and Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.
Source: This article was published by the MISES Institute
- 1. Robert R. Russel, “Constitutional Doctrines with Regard to Slavery in Territories,” The Journal of Southern History 32, No. 4 (Nov. 1966), p. 470.
- 2.Russel, p. 472.
- 3.Chattel slavery did exist among Indian tribes in New Mexico, but few activists on either side proposed granting suffrage to the indigenous population.