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State Sovereignty: Alexander H. Stephens' Defense of Particularist Federalism

Published online by Cambridge University Press:  05 August 2009

Herbert McClosky
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Extract

The debate over the nature of American federalism did not end, as is so frequently maintained, with the victory of die North in the Civil War. Indeed, it is inconceivable that a conflict of such proportions could ever; be reconciled as readily in the intellectual sphere as in the military. For at least three decades following the termination of that struggle, scholars, jurists and publicists continued, with a fervor and prolixity rivalling that of the pre-war debates, to explore the issues and constitutional questions associated with nullification, secession and the locus of sovereignty in the American Union. The great bulk of this post-war writing on federalism was the work of the victors and tended, therefore, to express “nationalist” or “dual federalist” interpretations. Despite an atmosphere hostile to the dissemination of theories that continued to view the states as sovereign bodies, defenses of particularism continued to appear. Among these was the treatise on constitutional history produced by Alexander H. Stephens.

Type
Research Article
Information
The Review of Politics , Volume 11 , Issue 2 , April 1949 , pp. 170 - 183
Copyright
Copyright © University of Notre Dame 1949

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References

1 Main Currents in American Thought, II, 84.Google Scholar

2 2 volumes (Philadelphia, 1868). See also his Reviewer Reviewed (New York, 1872).Google Scholar

3 Constitutional View of the Late War Between the States, I, 25.Google Scholar

4 Ibid., I, 20.

5 Ibid., II, 22.

6 Ibid., I, 40.

7 Ibid., I, 41.

8 For this latter point, see his Speech at Augusta, Georgia, July 2, 1859, in Cleveland, Henry, ed., Stephens in Public and Private, with Letters and Speeches (Phila., 1866), p. 649. He saw this “higher law” as the “law of the Creator.”Google Scholar

9 Constitutional View …, I, 51.Google Scholar

10 Ibid., I, 113.

11 The claim that the Convention “modified” but did not abolish the original constitution of the Union was supported by Stephens by an examination of the responses of the ftates to the call for a convention. Ibid., I, 95–113.

12 Ibid., I, 114.

13 Ibid., I, 137.

14 This clause reads: “The ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.”

15 Stephens, , op. cit., I, 143.Google Scholar

16 Ibid., I, 479 ff.

17 Ibid., II, 18–19.

18 Ibid., II, 21. This approach to a designation of the American Union was characteristic of post-war particularism. Note that B. J. Sage entitled his major work The Republic of Republics.

19 Ibid., I, 19.

20 Ibid., I, 496.

21 Ibid., I, 497.

22 Cf. A Constitutional View…, I, 421.Google Scholar

23 Cf. Rise of American Civilisation (New York, 1934), II, 50–1.Google Scholar

24 By legal sovereignty is meant here the highest power in the community over the law-making function.

25 The Civil War might, in a sense, be regarded as a “break” in the continuity. But in such cases as Texas v. White, Wall 700 (1869), the Supreme Court insisted to the contrary and proceeded in this and subsequent cases as though legal continuity had been untouched by the Civil War.Google Scholar