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March/April 2006

Discover more articles from this issue.

Freedom in the Old Testament

There is a widespread notion that the Bible, and especially the Old Testament, is and has historically been a force working against the freedom of man....

Robert’s Rules

Has order been restored to the Supreme Court with the appointment of legal wunderkind John Roberts, and Samuel Alito an associate justice? After talk of the Nuclear Option, his easy confirmation seemed like the end of the cold war. The relatively collegia

Quiet Case May Have Far-Reaching Impact

Missing were the shouting protestors with placards, the miniature Ten Commandments tablets, and the throng of media representatives. It was almost business as usual the day the Supreme Court heard the term's sole religious liberty case. Unlike the Ten Com

Jews and the Christian Right

It has been one of the stranger political alliances in American history: the conservative evangelicals of the Christian Right and America's Jews, two...

Freedom and Tolerance

Does religion promote freedom and tolerance? It is a question that might be asked by any observer of the rioting that has followed publication of cartoons in Denmark that offend Muslims worldwide.

All in the Family

Behind closed doors at a Religious Right strategy session in Washington, D.C., last spring, James Dobson sounded more like a hardball political operator than a Christian family counselor. Impatient with President George W. Bush and Republican congressiona

A Populist Religious Movement

Stories of religious disestablishment in America usually revolve around discussion of the origins and meaning of the establishment clause of the federal Constitution. But the story of disestablishment, at least in the early Republic, was much more a state

Toward a Medieval Model

Amid all the activity of a turbulent year, many missed the March 3, 2005, filing of the Constitution Restoration Act of 2005 (CRA) in both houses of Congress (S. 520 and H.R. 1070). If enacted, the CRA would effectively turn the United States into a theoc

What kind of liberty?

It was the "momentous question" that "awakened" and "terrified" Thomas Jefferson, like a "fire bell in the night." Jefferson considered it the "knell of the union." The "question" at issue was ostensibly that of slavery. Jefferson wrote about his nocturna

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Published in the March/April 2006 Magazine
by Nicholas P. Miller


It was the "momentous question" that "awakened" and "terrified" Thomas Jefferson, like a "fire bell in the night." Jefferson considered it the "knell of the union." The "question" at issue was ostensibly that of slavery. Jefferson wrote about his nocturnal fright in 1819 and related it to the conflict around the Tallmadge Amendment, which sought to outlaw slavery in Missouri, and the subsequent Missouri Compromise, which averted, or at least postponed, a civil war. But Jefferson of all people knew that the slavery dispute was only the symptom of the real legal question, that of federalism—the proper role the federal government should play in exercising powers and protecting rights in the states.
The Constitution contained a deep flaw—a flaw that Jefferson, or at least his close allies, had intentionally placed in the founding document. The flaw was the intentionally ambiguous nature of the federalism, the relation of federal to state governments and the individual, contained in the Constitution. The ambiguity had been placed there precisely to avoid dealing with the issue of slavery at the founding—thereby passing the buck on this deeply divisive issue to the next generation. Given Jefferson's central role in the formation and leadership of the early Republic, it is conceivable that his "fire bell in the night" was a particularly acute attack of conscience at leaving this great moral issue unresolved.

But we cannot be too hard on Jefferson. Most of his colleagues at the founding also believed that a constitution with a clear position on the question of federalism could not have gained passage. The ambiguity of the Constitution on this topic allowed both sides to read in their own views of federalism, creating a Constitution whose type of federalism—and hence relation to slavery and other fundamental civil rights, including religious freedom—lay in the eye of the beholder.

These competing visions of the Constitution and the nation—whether it was a sovereign nation of states or a confederacy of sovereign states—evolved over time, becoming most sharply contrasted between North and South. The contrast between these competing views of federalism and liberty grew starker and starker until the friction flared into the conflict of the Civil War. While the powder and bullets of that great conflict are a distant national memory, the same national and legal issues that sparked and stoked that controversy are with us today in current arguments over original intent, strict construction, states' rights, and the battle for civil rights. A walk over the terrain of this historic controversy can shed light on today's debates.

I Colonial Foreshadowings: Religious Liberty and Property Rights

Rather than twins separated at birth, the early American colonies were more like distant cousins thrown together by the accident of geography and ties to a common king who became a common enemy. All the colonies from Maryland northward had been founded primarily, at least ostensibly, by a desire to find havens of religious freedom. While that desire was often imperfectly expressed, especially in the governments of Puritan New England, religion was a core motivator for these northern colonies. Virginia and southward, the settlements had been primarily commercial enterprises, hopeful seedbeds of a market revolution.

Jamestown and the Massachusetts Bay Colony are perhaps the two archetypes that illustrate this divide: the former settled by fortune seekers representing commercial speculators, the latter peopled by Puritans fleeing the turbulent English Reformation. Certainly the middle and northern colonies had commercial concerns and interests, and the southern colonies had their share of religious devotees and devotions. But it is remarkable how the primary impulse and motivations of the colony founders—liberty in the North and commerce in the South—continued to dominate subsequent colonists' views of the role of government.

Outside the South, liberty was understood primarily in terms of personal liberties and the systems that sustained those liberties. Religious liberty was considered the first liberty, but its existence was defended and maintained by other liberties, those of the press, speech, trial by jury, and the ballot, at least for propertied White men. Property was protected as well, but as one right among a system of rights.

In the South, by contrast, liberty was largely identified with pursuing one's own self-interest. Independence was the ability of the local majority to assert its interests, which were usually commercial. Government's first role was to protect the economic interests of society. By the time of the Revolutionary War this had come to especially mean protecting the institution of slavery, upon which the agrarian South's economy and social stability were largely dependent.

II The Constitutional Convention:
Enshrining Ambiguity


Thus it was that two contrasting and even contradictory views of liberty and the role of government were well entrenched when it came time to frame the new Republic. This division over the ends of government led to a division over the means of government—the proper role and powers of a federal government. These issues extended beyond the question of slavery and encompassed range of possible government actions, from its role in regulating commerce to building public works, such as roads and canals, and how it should define itself in relation to its citizens.

Southern anti-federalists viewed a central state as "extremely pernicious, impolitic, and dangerous because it resulted from . . . an enormous transfer of power from the states to the central government." Such a consolidated, central power would threaten the South's interests in tariff-free trade, equitable taxation, and, most important of all, slavery. Prominent Southern leaders, including Patrick Henry and George Mason, believed that the proposed Constitution would allow the North to abolish slavery.

In the end, though the ratification contest was close and severe in some places, the Southern federalists carried the day. Men such as James Madison and Charles Pinckney assured their fellow Southerners that the Constitution did not destroy state power or rights. They noted that the federal government was one of express and limited powers. Any power not expressly delegated to it was reserved to the states. And as for abolishing slavery, Madison asserted, "There is no power to warrant it in the [Constitution]. If there be, I know it not."

But if the South took refuge in ambiguity, so did the North. The Constitution was not entirely silent on the question of slavery. It did allow the slave trade to be abolished after 20 years. Many in the North felt that the implication was that slavery could be abolished then as well. There were also clauses that hinted at broader federal powers, including the ability to regulate commerce and the right to legislate to protect the general welfare.

In the end there was enough affirmative language to give both views of federalism respectability, enough ambiguity to give both sides hope, and sufficient silence to defeat the anti-federalist critics of both North and South. Subsequent events would only deepen the commitments of both sides to their versions of federalism and the Constitution.

III Federalism, the Courts, and Liberty: 1790 to the 1820s

In the federal courts, those favoring a strong federal union began to gain a clear advantage over the states' rights advocates. Thus while the practice of federalism remained largely inconclusive, the theory began to decisively favor the advocates of a strong central union.

The states' rights advocates did not lack for articulate and prominent champions. Both James Madison and Thomas Jefferson fired some of the opening salvos on the states' behalf in the federalism struggle. The occasion was the passage in 1798 of the constitutionally doubtful Alien and Sedition Acts. In response, Madison drafted for Virginia a statement declaring the acts unconstitutional and calling for their repeal. Jefferson went a step further and on behalf of Kentucky drafted a statement that said a state could nullify a federal act that unconstitutionally oppressed its citizens.

It appeared that the states' rightists were able to hold the strong federalists to at least a stalemate in Congress during this period. But the federalists were gaining a decisive upperhand in the federal courts. Beginning in 1803 with Marbury v. Madison, John Marshall placed the federal judiciary in a position to authoritatively define the shape and role of both the Constitution and federalism. Marshall played his hand cautiously for a few years. But soon he issued a series of rulings that placed the federal system in a clearly superior position to that of the states.

Implementing Marshall's and Joseph Story's views that the Constitution issued from the people, rather than from a confederation of sovereign states, the Court declared that it could overrule the decision of a state supreme court on matters of federal law and that it could declare both federal and state legislative acts unconstitutional. And perhaps most important, it authorized a broad construction of federal power under the "necessary and proper" clause. This last power was articulated in McCulloch v. Maryland in 1819, the same year that slavery reemerged on the national platform with the conflict over the Tallmadge Amendment and the Missouri Compromise.

So by 1820 it was apparent to the most fervent state rightist that the Supreme Court had tilted the legal balance of federalism strongly toward the union. It was also clear that Congress was taking a renewed interest in the topic of slavery, and was willing to exercise its powers to at least limit and contain the institution. This set the stage for a growing call to Congress by a number of groups, including abolitionists and women's rights advocates, to exercise its growing powers in the arena of citizenship and civil rights. It was a call that would culminate in the Civil War and ultimately in the re-definition of federalism in relation to national citizenship.

IV Citizenship, Slavery, and Sex: 1830s to 1850s

The growing gap between the legal theory and the practice of federalism were eased somewhat by the success of Andrew Jackson, a Southern populist. Jackson did not oppose slavery, but he did support a strong union. Defeating John Quincy Adams in the election of 1828, Jackson heartened his Southern supporters by immediately questioning the legitimacy of the second federal bank. This institution had come to be viewed by many as a symbol of federal overreach—"the original sin against the Constitution."

But Southerners were less enthused by Jackson's perceived ambivalence toward the protective tariff. While it was lowered, the tariff continued under his watch. The tariff ignited the South Carolina nullification crisis of 1832, when that state's legislature purported to nullify the federal tariff. Jackson's reaction was prompt and decisive. He publicly declared nullification as treason and branded the nullifiers as traitors. He put the U.S. Army on alert and passed the Force Bill, giving congressional support to the use of force against nullification.

Cooler heads eventually prevailed; a tariff compromise was reached before swords were drawn. But the message had been sent—by a Southerner, no less—that the union would not be trifled with, but that such behavior would be met with force. A national context was being created in which the national government was an independent and sovereign entity whose prerogatives must be taken seriously by the states.

It was in this context that questions of citizenship became increasingly agitated. The initial catalyst was the widespread social reform movement that arose out of the Second Great Awakening of the 1830s. This outpouring of spiritual commitment has been credited with providing energy for a wide range of reform movements, the most prominent of that time being that of abolition. The beginnings of the abolitionist movement are associated with the commencement of publication in 1831 of The Liberator, William Lloyd Garrison's antislavery paper. By the mid 1830s slavery was under an unprecedented assault of speech, pen, and petition. The South struck back with almost equal fury: restricting freedom of speech and the press; refusing abolitionist literature in the Southern mail system; passing a "gag" rule forbidding Congress to consider abolitionist petitions; and stirring up mobs to attack abolitionists in the North and South.

But these Southern tactics could not quell the ferment of talk of rights and citizenship. Arguments about Blacks being human and deserving natural and constitutional rights inevitably raised these same question for others denied political and property rights, the largest and most obvious group being women. The Second Great Awakening had seen women play leadership roles. Some of these women also worked in abolitionist circles and imbibed the ideas of personhood in relation to natural and constitutional rights.

At the first major women's rights conventions at Seneca Falls, New York, in 1848, and in Worcester, Massachusetts, in 1850, the speakers presented relatively mature and well-formed arguments regarding their natural rights as persons and their constitutional rights as citizens. Their arguments had a coherence and a depth that revealed a growing public sense of what the rights of national citizenship should be, even if the laws did not reflect this standard. This was not a sort of identity politics, a reflection of Southern "liberty" concerns, in which interest groups advocated for their narrow interests. Rather, the language of personhood, citizenship, and natural and constitutional rights reflected support for a system of liberty that would benefit those beyond the immediate petitioners.

Thus it was that many of those involved in abolition were also involved in the movement for women's rights, as well as in movements for religious freedom. The arguments for these causes often began with notions of personhood and natural rights. But they usually became framed in terms of citizenship and the Constitution, as these were the concrete legal terms and tools that would or could allow Congress to act on the petitioner's concerns.

While these movements did not talk much about federalism, their petitions and manner of protest clearly indicated that they viewed the problems and the solution as lying with the federal government. Clearly, the South would not throw off the yoke of slavery sua sponte. Neither would each state spontaneously enlarge and protect the prerogatives of national citizenship. The solution to these problems lay with Congress.

Thus the legal question of federalism, so often concerned with the abstract balancing of state and federal rights, became profoundly personalized. In a growing number of minds it asked whether one was first and primarily a citizen of the state or of the nation. The abolitionists, women's rights activists, and other rights advocates insisted that the ties that bound the union together were, at their base, those of personal liberty and human equality. They argued that the Constitution was not a document standing alone; that rather it implemented the promises of the Declaration of Independence and that the Constitution should be interpreted in the spirit of that earlier organic document. They argued, with increasing force and effectiveness, that the national government had an obligation to defend these foundational American rights and commitments to its citizens against all intruders, including the states.

Southerners profoundly disagreed with these arguments. The resulting impasse was only resolved, in part, by the Civil War.
Conclusion
The Civil War was a decisive event in relation to slavery. And the postwar amendments purported to deal with the broader question of national citizenship. But it would be another generation or more before the federal courts came to terms with these issues in a series of decisions that "incorporated" federal civil rights against the states in the 1920s and 1930s. This little narrative reveals that the war was not about slavery alone, nor about states' rights alone, but about the role of federalism in relation to national citizenship. Seen against this larger backdrop, incorporation was about legally finishing the federalism argument that had been practically decided by the Civil War.

Slavery is over and gone. But arguments over federalism, strict construction, and the power of the federal government to define and protect the civil rights and religious liberties of its citizens is as current as today's news headlines. Our cultural divide is no longer one of North and South, but of red states and blue states, and the question of whose moral values will triumph. In this heated contest, will we remember that the federalism the Civil War vindicated was primarily about protecting the liberties of national citizenship, rather than protecting the cultural, property, or religious hegemonies of local majorities? Only time, and the newly configured Supreme Court, will tell us.



___________________________
Attorney Nicholas P. Miller is a longtime advocate for religious freedom. He heads up the International Religious Liberty Institute, based at Andrews University, Berrien Springs, Michigan, and with Liberty editor Lincoln Steed cohosts a regular weekly television show called the Liberty Insider.

1 William J. Cooper, Jr., Liberty and Slavery: Southern Politics to 1860 (Columbia, S.C.: University of South Carolina Press, 1983), p. 15.
2 Ibid., p. 63.
3 Ibid., pp. 66, 67.
4 Ibid., p. 67.
5 Charles Sellers, The Market Revolution: Jacksonian America, 1815-1846 (New York: Oxford University Press, 1991), pp. 305, 306.
6 Ibid., pp. 57, 58.
7 Cooper, pp. 171, 172.
8 Ibid., pp. 173, 174.
9 Ibid, p. 178.
10 Sellers, pp. 401, 403.
11 Nancy Isenberg, Sex & Citizenship in Antebellum America (Chapel Hill, N.C.: University of North Carolina Press, 1998), pp. 5, 6.
12 Ibid., p. 37.
13 Ibid., pp. 75-77.
14 Ibid., pp. 65-67.
15 Ibid.
16 Ibid., p. 21.

___________________________

Author: Nicholas P. Miller

Nicholas Miller, Ph.D., is an attorney and associate professor of church history at Andrews University, Berrien Springs, Michigan. He is the author of the The Religious Roots of the First Amendment (New York: Oxford University Press, 2012), which more fully develops the theme of this article.

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