Front and Center Vol. 2 No 7 July 2023

In the last issue of “Front and Center,” we introduced the two understandings of political order that comprise the general structure of American political history. The earlier political order, which may be called “Jeffersonian,” lasted from 1776 to 1861. The later political order, which may be called “Lincolnian,” was firmly in place in 1865 and is with us today. In fact, it is this understanding of American government that we were taught as children in school, and it is this form of political order that is at present under pressure from many directions. The purpose of this essay and the one just before it is to describe Jeffersonian and Lincolnian political order and to indicate how the latter developed within the former and finally displaced it. In doing this, our primary focus will be on a series of exchanges among three senators in 1829 and 1830 that have come to be known as the Webster-Hayne debates.

https://archive.org/details/politicalhistory00boyd/mode/1up?view=theater

In earlier writings of the Al Gray Marine Leadership Forum at Carolina Museum of the Marine, we have discussed the Treaty of Paris of 1783 in which the British crown acknowledged the independence of the former colonies of British America. Article I of the treaty opens with these words: “His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free sovereign and independent States;…” Note that each state is recognized by name as a free sovereign and independent state. The states were bound together in a federal union for the purposes of mutual security and defense and to maintain the United States internally as a free-trade zone. So the name “United States” was not the name of a unitary national state comprised of one people called Americans, but of a union of sovereign states united for limited and specified purposes. This union was populated by people called New Yorkers, Virginians, North Carolinians, and so on. At this point, a reader may reasonably wonder about the opening words of the preamble to the Constitution, “We the People of the United States,…” that are said to identify Americans as one national people. The confusion here is part of the tale of two doctrines under discussion.

In 1812, President James Madison nominated Joseph Story of Massachusetts to be an associate justice of the Supreme Court. In 1833, Justice Story published a three-volume work titled Commentaries on the Constitution of the United States. What is remarkable about this study is that in it, Story interprets the Constitution as having established a unitary national state rather than the federation of sovereign states ratified by Americans in 1788/89. Story’s commentaries appeared a few years after the Webster-Hayne debates and is part of what was a movement of growing intensity to change how Americans understood their governing order. To be sure, the understanding of government being advanced by Daniel Webster, Joseph Story, Chief Justice John Marshall and others had its adherents from the beginning of the country, but at this time, those whom we may call nationalists were planning to establish their vision of a unitary national state, displacing the federation of sovereign states that the United States were at that time.

Story claims that the words in the preamble to the Constitution announcing that We the People of the United States are establishing a new Constitution is a proclamation issuing from a single people, a nation, Americans all, taken in the aggregate, from north to south, and not a proclamation from an “assemblage of nations.” Thus Story will assert that the union is older than the states, that the People, in union, created the states, and therefore the states are but local governing districts within the union, rather like counties, with no sovereignty of their own. We believe with confidence, however, that Story’s tale is wrong on two closely related counts: there is no documentary evidence for it; and, all documentary evidence that exists establishes the opposite case, namely, that the United States were from their inception a federation of free sovereign and independent states. [i]

In 1840, Virginia jurist, secretary of the Navy, and secretary of state Abel Upshur published a reply to Justice Story’s commentaries with the cumbersome title A Brief Inquiry into the Nature and Character of Our Federal Government: Being a Review of Judge Story’s Commentaries on the Constitution of the United States. Upshur writes about the wording of the preamble to the Constitution saying that in the preamble to the final version of the document approved by the delegates at Philadelphia, each state was named individually, just as in the Treaty of Paris and in the Articles of Confederation.

Having approved a finished Constitution, the delegates appointed a committee on style, headed by Gouverneur Morris of New York, to render the language of the text more elegant. When that version of the Constitution was returned to the whole body, the delegates went through it line-by-line to ensure that no content inadvertently had been changed. When reading Article VII of the Constitution, the delegates noticed a difficulty they had previously missed. The first sentence of this short Article says: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so Ratifying the same.”

There were thirteen states in 1788, and so it would be embarrassing, at least, if four states rejected the Constitution but yet were named in the preamble as though they had adopted it. So the delegates replaced the list of states with a familiar formula referring to the people of the United States. The argument here is that Story distorted the meaning of the preamble to the Constitution in order to advance a nationalist understanding of the government that is not actually in the Constitution. Importantly, we see in the argument of Joseph Story of Massachusetts and in the reply of Abel Upshur of Virginia the continuation of a debate on the nature of the political order established in our Constitution that breaks into view in the Senate in the Webster-Hayne debates of 1830.[ii]