Constitutional History, 1801–1829

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CONSTITUTIONAL HISTORY, 1801–1829

thomas jefferson entered the presidency in 1801 with a rhetoric of return to constitutional first principles. Inaugurated in the new permanent capital on the Potomac, he offered a brilliant summation of these principles together with a lofty appeal for restoration of harmony and affection. "We are all republicans: we are all federalists," he declared. He hoped to achieve "a perfect consolidation" of political sentiments by emphasizing principles that ran deeper than party names or doctrines. He spoke of preserving "the whole constitutional vigor" of the general government yet called for "a wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned." Jefferson never doubted that "constitutional vigor" and individual liberty were perfectly compatible, indeed that the strength of republican government rested upon the freedom of the society. He named "absolute acquiescence in the decisions of the majority the vital principle of republics, from which there is no appeal but to force." This principle demanded freedom of opinion and debate, including the right of a minority to turn itself into a new majority, as the Republican party had done. "If there be any among us," Jefferson said, alluding to the delusions of 1798, "who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error may be tolerated where reason is left free to combat it." He thus announced a commitment to ongoing change through the democratic process. Because of that commitment the Constitution became an instrument of democracy, change became possible without violence or destruction, and government went forward on the continuing consent of the governed.

The "revolution of 1800," as Jefferson later called it, introduced no fundamental changes in the structure or machinery of the general government but made that government a more effective instrument of popular leadership. Jefferson himself possessed great popular authority. Combining this with the constitutional authority of the office, he overcame Whiggish monarchical fears and gave the presidency a secure place in the republican system. Jefferson dominated his administration more surely and completely than even george washington had done. The cabinet, which was composed of moderate Republicans, enjoyed unprecedented harmony, stability, and unity. It was the main agency of policy and decision making.

Jefferson also dominated Congress. For the first time, in 1801, the Republicans controlled both houses of Congress. The Federalists were a shrinking minority, though by no means powerless. In republican theory Congress should control the executive. Jefferson honored the theory in official discourse. Thus he declined to appear before Congress in person and sent his annual "State of the Union" message to be read by a clerk, setting a precedent that remained unbroken for 112 years. Practically, however, Jefferson recognized that the government demanded executive leadership if any majority, Federalist or Republican, was to carry out its program. How could he overcome the constraints of republican theory and the constitutional separation of powers ? The solution was found partly through the personal influence Jefferson commanded and partly through a network of party leadership outside constitutional channels. As the unchallenged head of the Republican party, Jefferson acted with an authority he did not possess, indeed utterly disclaimed, in his official capacity. Leaders of both houses of Congress were the President's political lieutenants. Despite the weak structural organization of the Republican party in Congress—the only formal machinery was the presidential nominating caucus which came into being every four years—the party was a pervasive functional reality. The President was chief legislator as well as chief magistrate. Nearly all the congressional legislation during eight years originated with the President and his cabinet. Lacking staff support, Congress depended on executive initiatives and usually followed them. Federalists complained of the "backstairs" influence of the President; eventually some Republicans, led by john randolph, rebelled. But the system of presidential leadership worked with unerring precision during Jefferson's first term. It faltered during his second term when the Republicans, with virtually no opposition to contend with, began to quarrel among themselves; and it would not work at all under Jefferson's successor, james madison, who lacked Jefferson's popular prestige and personal magnetism.

In matters of public policy, the Jefferson administration sought reform within the limits of moderation and conciliation. More doctrinaire Republicans, still infected with Anti-Federalism, were not satisfied with a mere change of leadership and demanded restrictive constitutional amendments to place the true principles of government beyond reversal or contradiction. While rejecting this course, Jefferson was never entirely happy with the consequences of his temporizing policies. Republican reform was bottomed on fiscal policy. The Hamiltonian system of public debt, internal taxes, and a national bank was considered an evil of the first magnitude. Secretary of the Treasury albert gallatin developed a plan to extinguish the debt, which had increased under the Federalists, by large annual appropriations, yet, amazingly, reduce taxes at the same time. All internal taxes would be repealed and government would depend solely on revenue from the customs houses. The plan required deep retrenchment, especially in the army and navy departments. Of course, it was premised on peace. Congress embarked on it; and although the debt was dramatically reduced during the next seven years, the plan was initially upset by the exigencies of the Tripolitan War, then derailed by the Anglo-American crisis that led to the War of 1812. Jefferson agonized over alexander hamilton's fiscal system. "When the government was first established," he wrote in 1802, "it was possible to have kept it going on true principles, but the contracted, English, half-lettered ideas of Hamilton destroyed that hope in a bud. We can pay off his debt in 15 years, but we can never get rid of his financial system. It mortifies me to be strengthening principles which I deem radically vicious, but the vice is entailed on us by the first error.… What is practicable must often control pure theory." A case in point was the Bank of the United States. Jefferson thought it an institution of "the most deadly hostility" to the Constitution and republican government. Yet he tolerated the Bank, in part because its charter ran to 1811 (when Republicans would refuse to renew it) and also because Gallatin found the bank highly useful to the government's operations.

Jefferson's "war on the judiciary" featured three main battles and several skirmishes, ending in no very clear outcome. The first battle was fought over the judiciary act of 1801. Republicans were enraged by this blatantly partisan measure passed in the waning hours of john adams's administration. It created a new tier of courts and judgeships, extended the power of the federal judiciary at the expense of state courts, and reduced the number of Supreme Court Justices beginning with the next vacancy, thereby denying the Republicans an early opportunity to reshape the Court. Jefferson promptly targeted the act for repeal. The Federalists had retreated to the judiciary as a stronghold, he said, from which "all the works of Republicanism are to be beaten down and erased." The Sedition Act had demonstrated the prostration of the judiciary to partisan purposes. After taking office Jefferson acted to pardon victims of the act, which he considered null and void, and to drop pending prosecutions. He often spoke of making judges more responsible to the people, perhaps by periodic review of their tenure; and although he recognized the power of judicial review, he did not think it binding on the executive or the legislature. According to his theory of "tripartite balance" each of the coordinate branches of government is supreme in its sphere and may decide questions of constitutionality for itself. The same theory was advanced by Republicans in Congress, as against the Federalist claim of exclusive power of the Supreme Court to declare legislation unconstitutional. Congress did not settle this issue; but after heated debate it repealed the offensive act and, with minor exceptions, returned the judiciary to its previous footing.

The second battle involved the case of marbury v. madison (1803). Although the Supreme Court's decision would later be seen as the cornerstone of judicial review, the case was understood at the time primarily as a political duel between the President and the Court, one in which Chief Justice john marshall took a gratuitous stab at the executive but then deliberately backed away from a confrontation he knew the Court could not win.

The third battle featured the impeachment of federal judges. In 1803 Congress impeached, tried, and convicted Judge john pickering of the district court in New Hampshire. The case was a hard one because Pickering's bizarre conduct on the bench stemmed from intoxication and possible insanity; but in the absence of any constitutional authorization for the removal of an incompetent judge, the Republicans took the course of impeachment and convicted him of "high crimes and misdemeanors." The subsequent impeachment of Supreme Court Justice samuel j. chase was clearly a political act. A high-toned Federalist, Chase had earned Republican enmity as the convicting judge in several sedition trials and by harangues to grand juries assailing democracy and all its works. Nevertheless, his trial in the Senate ended in a verdict of acquittal in 1805. Jefferson and the Republican leaders turned away from impeachment in disgust. Although it may have produced salutary restraint in the federal judiciary, and enhanced the President's role as a popular leader, neither impeachment nor any other Jeffersonian action disturbed the foundations of judicial power.

During his second term, Jefferson used the treason trial of aaron burr to renew the attack on the judiciary but without success. The former vice-president was charged with treason for leading a military expedition to separate the western states from the Union. Determined to convict him, Jefferson again faced an old enemy, John Marshall, who presided in the trial at Richmond. At Burr's request, Marshall subpoenaed Jefferson to appear in court with papers bearing on the case. Jefferson refused, citing his responsibility as chief executive. "The Constitution enjoins his constant agency in the concerns of six millions of people. Is the law paramount to this, which calls on him on behalf of a single one?" he asked. The court backed off. Nothing required Jefferson's presence. He offered to testify by deposition, but this was not requested. When the trial ended in Burr's acquittal, Jefferson denounced its whole conduct as political. He laid the proceedings before Congress and urged that body to furnish some remedy for judicial arrogance and error. Several Republican state legislatures instructed their delegations to seek amendment making judges removable on the address of both houses of Congress. Both President and Congress were preoccupied with foreign affairs in the fall of 1807, however, and nothing came of this effort.

The first foreign crisis of the Jefferson administration culminated in the louisiana purchase. It was an ironic triumph for a President, an administration, and a party that made a boast of constitutional purity. For the Constitution made no provision either to acquire foreign territory or, as the purchase treaty mandated, to incorporate that territory and its inhabitants into the Union. Jefferson, therefore, proposed to sanction the acquisition retroactively by amendment of the Constitution. Actually, such an authorization was the lesser part of the amendment he drafted; the larger part undertook to control the future of the Trans-Mississippi West by prohibiting settlement above the thirty-third parallel. But neither part interested congressional Republicans, and Jefferson, though he said failure of the amendment made the Constitution "a blank paper by construction," acquiesced. A revolution in the Union perforce became a revolution in the Constitution as well. The expansion of the treaty-making power was only the beginning of the revolution. A series of acts for the government of the new territory vested extraordinary power in the President; and the President proposed, with the sanction of a constitutional amendment, a national system of internal improvements to unite this far-flung "empire of liberty."

The foreign crisis of Jefferson's second administration continued under Madison and finally terminated in the War of 1812. With the formation of the Third Coalition against Napoleonic France in 1805, all Europe was engulfed in war. The United States became the last neutral nation of consequence—to the profit of its carrying trade. Unfortunately, each side, the British and the French, demanded the trade on its own terms, and submission to one side's demands entailed conflict with the other. Britain, the dominant sea power, was the greater problem. British ships attacked American carriers under interpretations of rules of blockade, contraband, and neutral commerce that were rejected by the United States. Britain claimed the right of impressment of seamen aboard American ships on the ground that they were actually British subjects who had deserted from His Majesty's Navy and shipped aboard American vessels with government connivance. There was some truth in this claim, but thousands of American citizens were, in fact, impressed by Britain. And every seizure was a stinging reminder of past colonial servitude. Diplomatic efforts to settle these issues proved abortive. Relations rapidly deteriorated after the Chesapeake-Leopard Affair in June 1807. The attack of HMS Leopard on an American naval vessel after its captain refused to permit boarding and search for deserters inflamed the entire country against Britain. Jefferson might have taken the country to war. Instead, in December, he proposed, and Congress swiftly passed, the embargo act. Essentially a self-blockade of American commerce, the act was in some part a preparation for war and in some part an experiment to test the theory of "peaceable coercion." The idea that the United States might enforce reason and justice on European belligerents by withholding its commerce was a first principle of Jeffersonian statecraft. Under the trial now begun, that idea failed. While the policy had comparatively little effect abroad, it produced serious economic, political, and perhaps even constitutional damage at home.

The embargo raised a host of constitutional issues, all hotly debated by Federalists and Republicans, though the parties seemed to have changed places. First, and broadest, was the issue of the commerce power. Republicans said the power to regulate commerce included the power to prohibit it. Federalists, who were closely allied with eastern merchants and shipmasters, limited regulation to encouragement and protection. Yet it was a Federalist, John Davis, the United States District Judge for Massachusetts, who upheld the constitutionality of the embargo on a broad view of the commerce power backed up by the "inherent sovereignty " of the United States. Second, wholesale violation of the embargo in the Lake Champlain region led the President to proclaim an insurrection and authorize military force to suppress it under the same law George Washington had earlier used to put down the whiskey rebellion over Republican opposition. Third, enforcement of the embargo required ever tighter measures of control. The fourth in the series of five embargo acts empowered customs collectors to search without a search warrant and to detain vessels merely on suspicion of intent to violate the law. The fourth amendment, a part of the Bill of Rights, was thus jeopardized. Fourth, before Congress adjourned in April 1808 it authorized the President to suspend the embargo against either or both belligerents—an unprecedented delegation of power. Federalists, of course, denounced the embargo in terms that recalled the virginia and kentucky resolutions.

A storm of protest in New England led Congress, at the end of Jefferson's presidency, to repeal the embargo. The Non-Intercourse Act, which replaced it, reopened trade with all the world except Britain and France. That course, too, failed; and for the next three years under the new president, Madison, the country drifted toward war. In the end, war was declared because both diplomacy and "peaceable coercion" had failed to resolve the conflict over neutral rights. But that conflict was a symbol of much more: the honor and independence of the nation, the freedom of its commerce, the integrity of American nationality, the survival of republican government. The war was thus morally justified as the second war for American independence. The nation was ill-prepared for war, however, and its conduct produced one disaster after another. One section of the Union, New England, vigorously opposed the war from the start.

This opposition gave rise to the principal constitutional controversy of the time. The governors of the New England states challenged congressional power to provide for organizing and calling forth the militia. The chief justice of Massachusetts's highest court advised the governor that the right to decide when the militia should be called belonged to him, not to Congress or the President; and later, in 1814, when the militia was activated it was in the state rather than the national service. Years later, in Luther v. Mott (1827), the Supreme Court fully sustained national authority over the militia. Interference with the prosecution of the war was accompanied by a steady stream of denunciation. Madison called this a "seditious opposition," but unlike his Federalist predecessors he made no move to restrain or suppress it. Ultra-Federalists had been hinting at disunion since the Louisiana Purchase threatened New England's power in the Union; some of them had plotted to establish a Northern Confederacy in 1804. Now, a decade later, Federalist delegates from all the New England states met secretly in the hartford convention, not to plot disunion, for moderate forces were in control, but to organize resistance against "Mr. Madison's War." Resolutions adopted by the convention recommended a series of constitutional admendments, including elimination of the three-fifths clause for the apportionment of representation and direct taxes, limitation of presidential tenure to one term, a two-thirds vote in Congress to admit new states and to declare war, and the disqualification of naturalized citizens from federal office.

The commissioners of the Hartford Convention arrived in Washington with their resolutions in the midst of jubilation over the Battle of New Orleans. They were ridiculed, of course; and from this nadir the Federalist party never recovered. News of the Peace of Ghent quickly followed. While it resolved none of the issues over which the war had begun, the treaty placed American independence on impregnable foundations and confirmed the strength of republican government. The American people erased the shame from a war so meager in victories, so marked by defeat, division, and disgrace, and put upon it the face of glory. In December 1815 Madison laid before Congress a nationalistic program that featured measures, such as a national bank, formerly associated with the defeated party. Yet the program was not a case of "out-Federalizing Federalism." The Republican nationalism that matured with the Peace of Ghent had nothing to do with Federalist nationalism, with its vitiating Anglophobia, its narrow class and sectional views, and its distrust of popular government. The American political experiment had vindicated itself, exorcising earlier fears for its survival and making possible the incorporation of principles of national improvement and consolidation into the Republican party.

A new era dawned in American politics in 1815. For a quarter-century the nation had directed its industry and commerce toward a Europe ravaged by war and revolution; now that era had ended, and with it the opportunity of rearing American prosperity on the misfortunes of the Old World. For almost as long, government had been carried on by party spirit; now one of the two parties, the Federalist, around which the rivalry of men, issues, and principles had turned, ceased to be a factor in national affairs, and it was by no means clear what political force would replace the force of party. A country that had hugged the Atlantic seaboard and sought its prosperity in foreign trade was about to explode in the Trans-Appalachian West. During the next six years five new western states would enter the Union. A wider Union and the rise of the West as a self-conscious section raised difficult problems of economic development, constitutional principle, and political power. Since its Revolutionary birth the nation had enjoyed astonishing continuity of leadership. Thomas Jefferson, author of the Declaration of Independence, was a gray eminence at Monticello; James Madison, Father of the Constitution, was the President who had finally, irrevocably, secured that independence in a second war against Great Britain. But a new generation of political leaders had burst on the scene during the war, and the fate of the nation now lay in their hands.

Nearly all Republicans united on the program of national improvement and consolidation that Madison laid before the Fourteenth Congress in December. This "Madisonian Platform" proceeded from an enlarged view of the general government's responsibility for the nation's welfare. A national bank had previously been recommended to Congress as an agency for financing the war. Now, facing the chaos of runaway state banking, Madison recommended it as a permanent institution to secure the constitutional object of a stable and uniform national currency. Madison, of course, had opposed the original Bank of the United States as unconstitutional, and Republicans in Congress had defeated its recharter in 1811. But conditions and needs had changed, and Madison, with most of these same Republicans, considered that experience had settled the question of constitutionality in favor of a national bank. The Madisonian platform called for continuing in peacetime high tariff duties on imports in order to protect the infant industries that had grown up behind the sheltering wall of war and embargo. The President called for a comprehensive system of internal improvements—roads and canals to bind the nation together, secure its defenses, and facilitate internal commerce. Any deficiency of constitutional power should be overcome by amendment. In a final appeal to the liberality of American patriotism, Madison proposed the establishment of a national university, in Washington, which would be "a central resort of youth and genius from every part of their country, diffusing on their return examples of those national feelings, those liberal sentiments, and those congenial manners which contribute cement to our union and strength to [its] great political fabric."

Congress responded with legislation to charter a national bank, establish a system of tariff protection, and create a permanent fund for financing a vast network of roads, canals, and other improvements. The last measure, dubbed the Bonus Bill because the fund was founded on the bonus to be paid for the bank charter, was vetoed by Madison on constitutional grounds in the last act of his presidency. In this surprising retreat to the doctrine of strict construction, Madison delivered the first shock to the postwar nationalism he had himself championed. His successor, james monroe, took the same position on internal improvements, holding that a constitutional amendment was necessary to authorize them. Republican leaders in Congress disagreed. They found sufficient constitutional warrant to build as well as to fund internal improvements in the commerce, post road, and general welfare clauses, and they declined to seek an amendment lest by the failure to obtain it the Constitution be weakened. In the end, however, Monroe conceded the unlimited power of Congress to appropriate money for internal improvements, while continuing to deny the power to construct and operate them. This concession provided a constitutional justification for the General Survey Act of 1824. Although the same argument supported important projects in the ensuing administration, no national system of internal improvements was ever realized. In the absence of constructive national action, the several states embarked upon ambitious projects of their own (New York's Erie Canal, for instance, begun in 1817); and soon the government even relinquished its one great enterprise, the National Road, to the states.

The period of Monroe's presidency was signalized as "The Era of Good Feelings." This reflected the dissolution of old party ties and feelings. The Republican party had become the grand party of the nation. In 1820 Monroe ran unopposed for reelection and only one erratic electoral vote was cast against him. But his success had little to do with party or popularity, nor did it translate into effective power and leadership. Power and leadership had shifted to Congress, particularly to the House of Representatives where henry clay had converted the office of speaker from that of an impartial moderator to one of policymaking leadership. To an extent, certainly, executive power receded because foreign affairs had taken a distant second place to domestic affairs on the nation's agenda. Interestingly, Monroe is best remembered not for any initiative or achievement in domestic affairs but for a masterly stroke of foreign policy, the Monroe Doctrine. But Clay even challenged the President in foreign policy; and congressional ascendancy owed much to the boldness and address of young leaders like Clay who sought to command the popular feeling and power of the country. Partly for this reason the postwar Republicans consensus was soon shattered and "good feelings" vanished on the winds of change. Great issues, such as the Missouri Compromise, split the nationalizing Republican party along its sectional seams. The Panic of 1819, which led to the first major depression in the country's history, released powerful currents that shriveled the bright hopes of 1815.

Although the Panic of 1819 broke banks, bankrupted merchants, idled workers, and emptied factories everywhere, it was centered in American agriculture, especially in the freshly burgeoning lands of the South and West. Many purchasers of these lands had availed themselves of the credit allowed by the Harrison Land Act of 1800. Also important to frontier farmers and planters, of course, was bank credit. State banks had generally met this need, but now they were aided and abetted by the new Bank of the United States, which established most of its branches in the South and West. Agricultural prices collapsed worldwide in 1818. A severe contraction of bank credit followed. The Bank of the United States barely survived, and did so only at the expense of bankrupting many thousands of farmers, merchants, and local bankers. Several western states enacted legislation in the interest of debtors. The controversy over the constitutionality of debtor relief laws rocked Kentucky for a decade. All along the frontier, in wheat lands and in cotton lands, people tended to blame their troubles on the Bank. There were calls for repeal of its charter, and state legislatures acted to restrain "The Monster." Ohio levied a prohibitive tax on resident branches; when it was not paid the state auditor seized $100,000 of the Bank's funds, thereby giving birth to the case of osborn v. the bank of the united states (1824). Wherever the depression caused hostility to the Bank, it weakened the spring of support for economic nationalism generally. To nationalist leaders, on the other hand, the depression offered further confirmation of the colonial character of the American economy and pointed up the imperative need for higher protective tariffs and other government assistance to bring about a flourishing "home market" for the products of American industry. This american system, as Clay named it, had its fulfillment in the Tariff of 1824.

While the Panic was at its height, in March 1819, the Supreme Court handed down its unanimous decision in mcculloch v. maryland, upholding the constitutionality of the Bank and its freedom to operate without state interference. Chief Justice John Marshall drew upon the Hamiltonian doctrine of implied powers not only for the congressional authority to charter a bank but also for a sweeping vindication of national supremacy. In the same momentous term, which established the high-water mark of judicial nationalism, the court invoked the contract clause to strike down laws of two states. In dartmouth college v. woodward it extended the protection of that clause to corporate charters; and in sturges v. crowninshield it struck down a New York law for the relief of debtors whose contracts antedated the law. Quite aside from their implications for national versus state authority, all these decisions placed the court unreservedly on the side of propertied interests against popular majorities in state legislatures.

The Bank case, in particular, provoked attack on the Supreme Court and more broadly on the growth of national power. In Virginia opposition to the Supreme Court, which Jefferson called a "subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric," sparked revival of the states ' rights doctrines of the Virginia and Kentucky Resolutions and offered powerful reinforcement of the state's challenge to the court's appellate jurisdiction. The challenge had ridden on an old case involving the confiscation of Loyalist lands during the American Revolution. Taking the case on appeal from the Virginia Court of Appeals, the Supreme Court had overturned the state's confiscation law and found for the right of the English heir. To this Judge spencer roane, head of the Virginia court, responded by denying the Supreme Court's appellate jurisdiction, declaring section 25 of the Judiciary Act of 1789 unconstitutional, and refusing to execute the Supreme Court's decree. The court again took up the case, martin v. hunter ' s lessee (1816), and through Justice joseph story reasserted the constitutionality of the appellate jurisdiction over state courts together with the judicial supremacy that went with it. But for the Bank case the controversy would have been quickly forgotten. As Marshall observed, however, that case "roused the Sleeping Giant of Virginia." Under the pseudonym "Hampden," in the columns of the Richmond Enquirer, Roane advanced a dual federalism philosophy of the Constitution. Under it there could be no ultimate appeal from the state courts to the Supreme Court. Marshall replied at length as "Friend of the Constitution" in the Alexandria Gazette. The veteran Old Republican john taylor of Caroline expounded the Virginia doctrines ad nauseum in Construction Construed and Constitutions Vindicated (1820). The doctrines still had a long course to run, but the controversy over appellate jurisdiction drew to a close in cohens v. virginia (1821). In this arranged case Virginia became the defendant when the Cohens appealed their conviction in state court to the Supreme Court under Section 25. The Virginia assembly adopted resolutions backing the state cause. Surprisingly, perhaps because the case resulted in a nominal victory for the state, Marshall's broad assertion of national judicial supremacy provoked no official reaction in Virginia, and opposition collapsed in 1822.

The Missouri Compromise was enacted in the midst of these events and communicated its own passions to them. The proposal to restrict slavery in Missouri as a condition of statehood raised difficult questions about the constitutional authority of Congress, the nature of the Union, the future of the West, the morality of slavery, and the sectional balance of power. Congress had previously restricted slavery in the territories. That power was not seriously in dispute. But the Missouri constitution would provide for slavery, and it was by no means clear that Congress could overrule it, especially as slavery had always been considered an institution under local jurisdiction. The compromise resolved the issue by allowing Missouri to enter the Union as a slave state. A new problem arose, however, when the proffered Missouri constitution contained a provision for excluding "free negroes and mulattoes" from the state. Opponents of the compromise charged that this violated the privileges and immunities clause of the United States Constitution, because Negroes who were citizens of northern states would be denied citizenship in Missouri. Laboriously, a new compromise had to be constructed to save the original one. Under it Missouri would be admitted to the Union only after the legislature agreed, despite the constitutional provision, never to pass a law that might abridge the privileges and immunities of citizens. Missouri acquiesced and gained admission to the Union in August 1821. Not for many years would the harmony of the Union again be disturbed by slavery. The Missouri Compromise, therefore, contributed mightily to peace and union. Yet to Thomas Jefferson, contemplating the exclusion of slavery above the 36' 30" parallel, the compromise was "like a fire-ball in the night," sounding "the knell of the Union." "It is hushed, indeed, for the moment. But this is a reprieve only, not the final sentence. A geographical line, once conceived and held up to the angry passions of men, will never be obliterated; and every new irritation will mark it deeper and deeper."

The Republican consensus vanished during Monroe's second term. The Missouri question had raised fears of sectional parties and politics that were not dispelled by the compromise. The growth of the West, with a maturing sectional consciousness of its own, and the scramble of economic interests for the bounty and favor of the general government put the National Republican system under heavy strain. While nationalists continued to believe that the Union would survive and prosper only through measures of consolidation, growing numbers of Republicans, inspired by the Virginia "Old Republicans," believed consolidation must tear the Union apart. They called for return to Jeffersonian austerity and states' rights.

In this unstable political environment, the contest for the presidential succession was especially disturbing. Monroe's chief cabinet officers, john quincy adams, William H. Crawford, and john c. calhoun, were in the race from the start, and they were soon joined by Henry Clay and andrew jackson. In the absence of a single dominant leader or a clear line of succession, such as the Virginia dynasty had afforded, the Republican party split into personal followings and factions. The congressional caucus of the party, which had been the mechanism for nominating candidates for President and vice-president, could no longer be relied upon. The caucus itself had become an issue. In an increasingly democratic electorate it was assailed as a closed, elitist institution. Politicians grew wary of the caucus but saw no obvious substitute for it. "We are putting to the proof the most delicate part of our system, the election of the Executive," daniel webster remarked. What was most distressing about the present contest, among men nourished on traditional Whig fears of executive power, was that it made the presidency the center of gravity in the government. Great issues of public policy were submitted to the artifice and caprice of presidential politics; and senators and representatives, if elected on the basis of presidential preferences, must necessarily compromise their independence. This threatened subordination of the legislative to the executive power was an inversion of the proper constitutional order.

Given the multiplicity of candidates, each with his own following, and none able to command a majority of votes, the election of the President inevitably wound up in the House of Representatives. There Clay, the speaker, having been eliminated, threw his support to Adams, who was chosen over Jackson, the popular vote leader. Adams's subsequent appointment of Clay as secretary of state, the cabinet post which had furnished the President for the third successive time, brought cries of "corrupt bargain" from the Jacksonians, and from this canard the Adams administration never recovered. Boldly, in his first message to Congress, Adams proposed to rally the country behind a great program of national improvement, one which took conventional internal improvements—rivers and harbors, roads and canals—only as a starting point. "Liberty is power," Adams declared. A nation of liberty should be a nation of power, provided, of course, power is used beneficently. The Constitution presents no obstacle. Indeed, to refrain from exercising legitimate powers for good ends would be treachery to the people. "While foreign nations less blessed with that freedom which is power … are advancing with gigantic strides in the career of public improvement," Adams said, "were we to slumber in indolence or to fold up our arms and proclaim to the world that we are palsied by the will of our constituents, would it not be to cast away the bounties of Providence and doom ourselves to perpetual inferiority?"

In response to the message, all the old artillery of states' rights and strict construction was hauled out and turned on the administration. Liberty is power? What dangerous nonsense. Liberty is the jealous restraint of power. Individuals, not governments, are the best judges of their own interests; and the national interest consists only in the aggregate of individual interests. These ideas had been employed in the attack on the American System. Now they entered deeply into the ideology of the emerging Jacksonian coalition. A new recruit to the coalition was Vice-President Calhoun, who began to shed the liberality and nationalism that had characterized his political career. In part, certainly, he was influenced by the rising states' rights frenzy in South Carolina. This movement was orchestrated by Calhoun's enemies in the Crawford faction. In 1825 they drove through the legislature resolutions declaring the protective tariff and federal internal improvements unconstitutional. This "Revolution of 1825," as it came to be known, showed how far out of step Calhoun was with the opinion of his state, and he hurried to catch up.

In Congress the anticonsolidation movement provided most of the rhetoric and some of the substance of opposition on every issue with the administration but was especially evident in debates on the judiciary and the tariff. Report of a bill in the House to reorganize the federal judiciary, mainly by the addition of three circuits—and three new judges—in the West, furnished a forum for advocates of reforming the judiciary. There was still no consensus on the role and authority of the Supreme Court. The Court had been a powerful ally of consolidation. Between 1816 and 1825 it had ruled in favor of national power seventeen times and of states' rights only six times, when they were at issue; and by 1825 it had invalidated in whole or in part the statutes of ten states. Various measures, most of them involving constitutional amendment, had been offered to curb judicial power: the withdrawal of opinions, or removal of Justices, on the address of both houses of Congress; the requirement of seriatim opinions; the use of the Senate as a tribunal of last resort on federal questions; and the repeal of section 25 of the Judiciary Act. All were aired in the 1826 debate. Nothing of substance emerged; the reorganization bill itself, after passing the House, failed in the Senate. Yet the debate, which was the "last hurrah" of reform, may have contributed to the increasing moderation of the Marshall Court after 1825.

The tariff had been a constitutional issue since the great debate on the American System in 1824. The power to tax, Virginia congressman philip p. barbour had then argued, was not a power to promote one industry over another, nor did any such power exist in the Constitution. Controversy was reignited three years later by demands for additional protection, particularly on behalf of the rising wool and woolens industry of the Northeast. Jacksonian politicians, who came into control of the new Congress, could not ignore the demand. Under the leadership of martin van buren of New York they framed a tariff bill that was a political strategem rather than a serious piece of economic legislation. Moreover, they persuaded their southern friends to go along with the bill on the spurious plea that it would finally fail because of provisions designed to trigger overwhelming New England opposition, thereby enabling the Jacksonians to claim credit in the North for protectionist efforts without inflicting further injury on the South. But in the Senate, where it was named the Tariff of Abominations, the bill was amended to become less objectionable to New England, and its grat spokesman, Webster, heretofore a free-trader, dramatically declared his support. the tariff act of 1828 became law. The South felt betrayed. In South Carolina, which had grasped the flagging torch of states' rights from Virginia, there were demands to "calculate the value of the Union." The legislature, in December, enacted a series of resolutions declaring the tariff oppressive and unconstitutional. It also published the South Carolina Exposition and Protest, which Calhoun had authored secretly at the invitation of a legislative committee. The Exposition repeated, with some elaboration, the litany of antitariff arguments South Carolina radicals had been urging for several years and it offered the first authoritative statement of "the Carolina doctrine" of nullification.

A motley coalition—western agrarians, southern planters, northern democrats—swept Andrew Jackson into the presidency in 1828. His inaugural address gave no clear sign of the direction his administration would take; but the dominant pressure of the men, ideas, and interests gathered around the President was toward dissolution of the National Republican platform and toward the rebirth of party government on specious Jeffersonian principles.

Merrill D. Peterson
(1986)