CONSTITUTIONAL HISTORY, 1829–1848

Constitutional change in the Jacksonian era began with the Virginia constitutional convention of 1829–1830, and climaxed in the election controversies of 1848. Between these dates, the American people tried to renovate their constitutional order, especially with respect to the great issues of federalism, democratization, and slavery.

Virginia's venerable Constitution of 1776, like other early constitutions, had come to enshrine the related evils of malapportionment and disfranchisement. thomas jefferson denounced these and other defects in the document from the founding of the commonwealth to his death. His criticism produced the convention of 1829, where the badly underrepresented Western delegates demanded reform, including white manhood suffrage and a reapportionment that would fairly represent the growing population of their region. The convention was a showcase of Virginia's political leadership, including as delegates james madison (who had also been a delegate at the 1776 convention), john marshall, james monroe, john randolph, as well as emergent conservative leaders like john tyler, Benjamin Watkins Leigh, and Abel Parker Upshur. The conservatives from the tidewater region, representing the interests of slaveholders, held the reformers at bay, conceding only a limited modification of the old freehold suffrage to include householders and leaseholders, far less than the taxpayer-militia qualification representing a compromise conceded by the western delegates. Reapportionment similarly fell short of western demands, as the convention adopted a complex system of regional representation. The conservative triumph on these two issues was assured partly because many delegates heeded Leigh's warning that reform would produce "the annihilation of all state rights." Implicit in this response were fears for the security of slavery. Those fears were bloodily confirmed by Nat Turner's 1831 slave insurrection in Southampton County, and reawakened the next year as the Virginia General Assembly debated and ultimately voted down a proposal for the gradual abolition of slavery.

Slavery, only hinted at in the 1828 Virginia debates, soon surfaced as a constitutional topic throughout the South. In State v. Mann (1829) Chief Judge Thomas Ruffin of the North Carolina Supreme Court held that the absolute subjection characteristic of slavery was "essential to the value of slaves as property, to the security of the master, and [to] the public tranquility." The South Carolina Court of Appeals later held that "a slave can invoke neither magna charta nor common law. … In the very nature of things, he is subject to despotism." The political counterpart of this new proslavery jurisprudence was the "positive good" thesis, first advanced by South Carolina Governor George McDuffie in 1835 and amplified thereafter by john c. calhoun in the United States Senate.

Southern judicial and political leaders found themselves compelled to erect defenses for the internal security of slavery after 1830 in part because a new cadre of abolitionists appeared in the northern states, led at first by William Lloyd Garrison. Repudiating both gradualism and projects for the colonization of free blacks in Liberia, this new generation of antislavery workers demanded the immediate and uncompensated abolition of slavery. They tried their hand at constitutional challenges to slavery. Although they conceded that the federal government had no power to interfere with slavery in the states, they found many areas for legitimate federal action, such as exclusion of slavery from the territories, abolition of slavery in the district of columbia, abolition of the interstate slave trade, and refusal to admit new slave states. At the state level, they sought, unsuccessfully, to have slavery declared unconstitutional in New Jersey, persuaded the Massachusetts and New York legislatures to enact personal liberty laws, and provided invaluable support for fugitive slave rescues. In 1832, when they got their first taste of constitutional litigation in the Connecticut prosecution of Prudence Crandall, they attempted to define and secure the rights of free blacks under the privileges and immunities clause of Article IV, section 2, of the Constitution.

By 1830 it was obvious that the South Carolinians were counting the costs of the Union, and weighing their alternatives. The fundamental concepts of state sovereignty and the right of secession were commonplace at the time. Thus in the Webster-Hayne debates of 1830, South Carolina Senator Robert Y. Hayne was closer to orthodoxy than daniel webster when he supported a cluster of theories derived or extrapolated from the virginia and kentucky resolutions of 1798–1799: he condemned the consolidationist tendencies of the federal government, asserted state sovereignty, insisted on a strict construction of the Constitution, reiterated the compact theory of the Union (by which the Constitution and the national Union were the creation of a compact of sovereign states), and defended the legitimacy of interposition and nullification. Webster's famous rhetorical reply is better known but less analytical than other rebuttals by Edward Livingston, john quincy adams, and joseph story between 1830 and 1833. These maintained that sovereignty had effectively been transferred to the national government by the Constitution, that the Union created thereby was perpetual, and that secession was extralegal. In his Commentaries on the Constitution (1833), Story flatly denied that the Constitution was a compact among sovereign states. James Madison joined his venerable voice to theirs, condemning all theories of nullification as perversions of the doctrines he and Thomas Jefferson had propounded in 1798 and 1799. All maintained that because the Union was perpetual, it was therefore indissoluble. But John Quincy Adams had the ominous last word when he wrote in 1831 that "it is the odious nature of [this] question that it can be settled only at the cannon's mouth." South Carolina's attempted nullification of the tariff act of 1828 and its 1832 revision forced a resolution of these conflicts that came close to the mode Adams had predicted.

Though ostensibly aimed at the tariff, and the larger but more nebulous problem of the "consolidation" of the federal government's powers, the nullification controversy at its heart concerned the security and perpetuity of slavery. The tariff controversy nonetheless provided a convenient vehicle for the Carolinians to reconfirm their traditional theories of the union and state sovereignty. In November 1832 a specially elected convention adopted the south carolina ordinance of nullification, which prohibited collection of the tariff and appeals to the United States Supreme Court. President andrew jackson responded with his "Proclamation to the People of South Carolina," drafted by Secretary of State Livingston, which refuted nullification theories, asserted federal supremacy, insisted on obedience to federal laws, warned that "Disunion by armed force is treason," and, surprisingly in view of his Bank Veto Message five months earlier, maintained that the Supreme Court was the proper and final arbiter of disputes under the United States Constitution and laws. The force act of 1833 gave teeth to the proclamation, while a compromise tariff assuaged Carolina's nominal grievance. The Carolinians suspended, then rescinded the ordinance of nullification, which had been universally condemned by other states. But the state convention consoled itself with the empty gesture of a second ordinance nullifying the Force Act. On this equivocal note, the nullification crisis dissolved. Both sides in reality suffered a long-term defeat. Nationalists led by Jackson had failed to quash ideas of state sovereignty and secession; Calhoun and the nullifiers had failed to forge a united front of slave states and had promoted the federal "consolidation" they feared and condemned.

The second party system, emergent at the time of the nullification crisis, produced its own constitutional controversies. henry clay had announced the basis of what he called the american system in 1824: a protective tariff, federal aid to internal improvements, and support for the second Bank of the United States. In a decade this became the program of the Whig Party. Jacksonian Democrats denounced all three elements as being of dubious constitutionality. In 1830 President Andrew Jackson vetoed the maysville road bill partly because he doubted that federal aid for internal improvements, at least those lying wholly within a state, was constitutional. Two years later, in his veto of the recharter bill for the second Bank of the United States, he similarly expressed reservations about the constitutional power of Congress to charter a bank. He brushed aside the binding force of Chief Justice John Marshall's decision on the subject in mcculloch v. maryland (1819) by asserting that "the authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities.…" In 1833 Jackson ordered his subor dinates to remove all federal deposits from the bank, and to redistribute them in selected state-chartered banks.

The democratization of American politics was advanced by the Whigs' development of mass electioneering techniques in the 1840 presidential campaign. Whig success was short-lived, however, because of President William Henry Harrison's death in 1841. john tyler, a conservative Virginia Democrat, succeeded to the office, and in doing so established the important precedent that he was not merely the "acting President" but President in fact. One of the few positive accomplishments of the Whigs' brief accession to power was the enactment of the nation's second Bankruptcy Act in 1841. Its repeal in 1843 returned the matter of insolvency legislation to the states, where it was to remain until 1898. Direction of the nation's economy was to remain chiefly the responsibility of the states until the Civil War. (See bankruptcy power.)

In the 1830s the states encouraged and subsidized economic development in numerous ways. Their role was almost entirely promotional; during the Jacksonian era, they essayed only the most diffident beginnings of economicregulation. The state legislatures granted charters and franchises for banking, insurance, railroad, and manufacturing corporations. Encouraged by the remarkable but unduplicated success of New York's Erie Canal in the 1820s, other states provided direct financial support for construction of turnpikes, canals, and railroads.

State jurists likewise supported economic development, sometimes by creating whole new domains of law (torts, nonmarine insurance), and sometimes by reworking traditional legal doctrines to provide instrumentalist approaches supportive of entrepreneurs. In 1831 Chancellor Reuben Walworth of New York upheld the power of the legislature to grant eminent domain powers to railroads, and Chief Justice lemuel shaw of the Massachusetts Supreme Judicial Court afterward approved the extension of that power to manufacturing corporations as well. Chief Judge john bannister gibson of the Pennsylvania Supreme Court helped refashion the law of contracts in favor of the doctrine of caveat emptor, an impersonal and seller-oriented approach presumably suited to a national market. The new orientation of the law of contracts and sales emphasized the autonomy of the individual and private will, dismissing earlier insistence on equitable dealing and community standards of fairness.

But the public law of the states in the 1830s was not exclusively concerned with succoring nascent industrial capitalism. In fact, the common law itself, as well as its judicial exemplars, came under reformist attack. In the Jacksonian period, the movement toward an elective judiciary decisively gained ground, as Mississippi led the way in 1832 by making its entire bench elective. Other states followed suit, so that by the twentieth century only the federal judiciary remained wholly appointive and life-tenured. An even stronger assault on judge-made law emerged from the movement to codify all laws. Even legal conservatives like Joseph Story conceded that some restatement of law in certain areas (evidence, criminal law, and commercial law) might be both feasible and useful. More thoroughgoing codifiers, such as Edward Livingston and Robert Rantoul, condemned the common law as antidemocratic, mysterious, and prolix.

Meanwhile, the controversy over slavery intensified. From 1835 to 1840, mobs in all sections of the country harassed abolitionists and free blacks. The beleaguered abolitionists, for their part, mounted a propaganda campaign against slaveholding by weekly mailings of abolitionist literature throughout the South. Democrats and southern political leaders reacted violently, with Postmaster General Amos Kendall condoning destruction of mail in Charleston. President Jackson recommended congressional prohibition of abolitionist mailing in the southern states, but Senator John C. Calhoun objected, partly because such federal legislation would invade rights reserved to the states. The controversy dissipated when abolitionists redirected their energies to a petition campaign, garnering signatures throughout the north on petitions to Congress demanding various antislavery measures, such as abolition in the District of Columbia, interdiction of the interstate slave trade, and refusal to annex the slaveholding republic of Texas or to admit new slave states.

Abolitionists were active in legal-constitutional efforts against slavery at the state level, too. In Massachusetts, they scored a striking victory against the ingress of sojourners' slaves in commonwealth v. aves (1836), when Chief Justice Shaw expounded an American version of the doctrine of somerset ' scase (King's Bench, 1772). Shaw held that a sojourning slave could not be held in slavery against her will in Massachusetts because no state law supported slavery and because the "all men are free and equal" provision of the 1780 Massachusetts Declaration of Rights was "precisely adapted to the abolition of negro slavery." Abolitionists enjoyed less success the next year in Ohio and Pennsylvania, however. Chief Judge Gibson held in 1837 that, under the Pennsylvania constitution, blacks were not "freemen" and hence could not vote. A state constitutional convention meeting that year took no action to reverse this holding. In Ohio, the abolitionist lawyers salmon p. chase and james g. birney developed an impressive range of legal and constitutional arguments in Matilda's Case (1837) to demonstrate that the 1793 federal Fugitive Slave Act was unconstitutional under the fourth amendment, the Fifth Amendment's due process clause, and the northwest ordinance's guarantees of trial by jury and habeas corpus. These arguments failed then, but they furnished an impressive stock of ideas to expanding abolitionist constitutional theory.

At the national level, defenders of slavery launched a counterattack against this assault. The United States House of Representatives in 1836 adopted the first of the congressional "gag resolutions," declaring that all petitions coming into the House as a result of the antislavery petition campaign would be automatically tabled, without being referred or read. In subsequent years, the Senate adopted a similar rule, and the House made it a standing rule. But the gags proved insufficient bars to the determined evasions of a handful of antislavery congressmen, led by John Quincy Adams, who repeatedly introduced antislavery petitions. (See civil liberties and the slavery controversy.)

Observing such assaults on slavery with alarm, Calhoun introduced into the Senate in 1837 a series of resolutions that in effect restated the nature of the Union and slavery's relation to it. These resolutions condemned antislavery agitation as "subversive"; declared that the federal government was the "common agent" of the states, bound to protect all their institutions, including slavery; that slavery was an "essential element" in the organization of the Union; that any congressional interference with slavery in the District of Columbia or the territories would be an "attack on the institutions" of the slave states; and that Congress could not discriminate against the interests of the slave states in the territories. Congress declined to adopt the last two, but its endorsement of the others threatened to give the slave states a constitutional predominance in the Union.

Abolitionists responded with innovative constitutional thinking of their own. In 1839 the hitherto unified movement began to split apart. The antislavery mainstream became involved in political action, forming the Liberty Party. They conceded exclusive state power over slavery in the states where it existed, but called for congressional action elsewhere, as, for example, by refusing to admit new slave states and by repealing the Fugitive Slave Act. Two splinter groups of the movement challenged this moderate position. Followers of William Lloyd Garrison, embracing the theological doctrine of perfectionism, by 1842 came to denounce the Constitution as a proslavery compact, and called for disunion. Radical abolitionists, led by the New York lawyer Alvan Stewart, discarded previous assumptions about slavery's legitimacy and contended that slavery was everywhere unconstitutional as a violation of various constitutional provisions, including the Fifth Amendment's due process clause (considered both in procedural and substantive senses), Article IV's guarantee of a republican form of government, and the same article's privileges and immunities clause.

Abolitionists harked back to the declaration of independence and to the tenets of republican ideology of the Revolutionary era. So did contemporary suffrage reformers in Rhode Island, who faced the same problems of mal-apportionment and disenfranchisement as had Virginia two decades earlier. After concluding that the existing conservative regime would never concede reform, they called an extralegal constitutional convention to modernize the state's constitution, which until then had been the 1662 Charter. This "People's Constitution" was ratified by universal male suffrage. Its supporters then elected a new government for the state, with Thomas W. Dorr as governor. The existing regime refused to cede power, so for several months in 1842, Rhode Island had two governments, each claiming a different source of constitutional legitimacy: the Dorrites, a do-it-yourself, implicitly revolutionary popular sovereignty; and the extant regime, legality backed by force. With behind-the-scenes support of President Tyler, the regular government suppressed its opponents, then inaugurated the substance of what the reformers had demanded. The failure of the Dorr Rebellion demonstrated that the guarantees of self government and equality in the Declaration of Independence would not be taken literally or programmatically in the Jacksonian era.

Constitutional change came to other states less turbulently in the 1840s. In neighboring Massachusetts, Chief Justice Shaw placed the Supreme Judicial Court in the forefront of legal and constitutional innovation in a series of decisions from 1842 to 1850 that created new doctrines and revolutionized old ones. In Commonwealth v. Hunt (1842) Shaw legitimated labor union organization in the United States. The Philadelphia and New York Cordwainers Cases (1806, 1810), reaffirmed by New York decisions in the mid-1830s, had held labor organization and strikes to be criminal conspiracies at common law and illegal under state statutes prohibiting injury to commerce. But in Hunt, Shaw held that neither the objectives of the workers nor their means—unions and strikes—were inherently unlawful. Because it removed the taint of per se illegality from unions, the Hunt decision has been extravagantly called the "Magna Carta of organized labor."

Another Shaw decision of the same year, Farwell v. Boston and Worcester Railroad, proved as damaging to the cause of industrial workers as Hunt had been beneficial. In exempting an employer from liability for the injury to one of its employees caused by the negligence of another employee, Shaw enunciated the fellow-servant rule that stood as a bar to recovery in such situations.

Because Massachusetts was in the vanguard of industrialization, Shaw had an opportunity to influence the law of railroads and common carriers more than any other contemporary jurist, leading one scholar to conclude that he "practically established the railroad law for the country." In cases involving eminent domain and taxation, Shaw held railroads to be "a public work, established by public authority" whose property is held "in trust for the public." Shaw thereby hoped to secure legislative benefits granted railroads, while at the same time leaving open the possibility of some degree of public control through legislation. Yet he was solicitous to exempt railroads from forms of liability that would have drained investment capital.

The temperance movement proved to be as prolific a source of judicial lawmaking as innovations in transportation technology. Throughout the antebellum period, state appellate courts had kept alive the higher law tradition enunciated by Justice samuel chase in his opinion in calder v. bull (1798). State judges, especially those of Federalist and Whig antecedents, readily struck down various state laws for the inconsistency with "the great principles of eternal justice" or "the character and genius of our government." In his Commentaries on the Constitution (3rd ed., 1858), Joseph Story summed up "the strong current of judicial opinion" that "the fundamental maxims of a free government seem to require, that the rights of personal liberty and private property should be held sacred." The Delaware Supreme Court used such nebulous concepts derived from the nature of republican government to void a local-option prohibition statute in 1847. Higher law constitutional doctrine became all the more important after the United States Supreme Court's 5–4 decision in the license cases (1847), upholding Massachusetts, Rhode Island, and New Hampshire statutes taxing and regulating liquor imported from outside the state. This trend culminated in the celebrated case of wynehamer v. people (1856), where the New York Court of Appeals struck down a state prohibition statute under the state constitution's law of the land and due process clauses.

Chief Justice Shaw was the author of a doctrine that provided a powerful offset to such higher law tendencies: the police power. In commonwealth v. alger (1951) he stated that all property is held "under the implied liability that … use of it may be so regulated, that it shall not be injurious … to the rights of the community." He accorded the legislature sweeping power to subject property to "reasonable limitations." After the Civil War, the police power doctrine constituted the basis for an alternative to the dogmas of substantive due process and freedom of contract.

Courts were by no means the sole font of constitutional innovation in the 1840s. State legislatures and constitutional conventions also modified the constitutional order. Reflecting the movement of the age from status to contract, as noted by Sir Henry Maine, the state legislatures in the 1840s extended some measure of control to married women over their own property through the married women's property acts. State courts sometimes reacted with hostility to these measures, seeing them either as a deprivation of the husband's property rights protected by higher law or as deranging gender and marital relationships.

Four New England states experimented with embryonic railroad regulatory commissions (Rhode Island, 1839; New Hampshire, 1844; Connecticut, 1850; Massachusetts, various ad hoc special commissions), but none of these proved successful or permanent. New York in the 1840s had to confront the legal consequences of the emergent nativist controversy. Roman Catholics sought public funding for parochial schools and objected to use of the King James Bible for devotional sessions in public schools. Nativists, for their part, demanded that the predominantly Catholic immigrants of the period be disfranchised.

The most significant state constitutional event of the decade was the drafting and ratification of the New York Constitution of 1846. This document was a compendium of constitutional trends of the era and profoundly influenced subsequent constitutions, especially those of Michigan and Wisconsin. It capped the decade's long movement toward general incorporation acts by restricting the granting of special corporate charters, and, for good measure, made all legislation respecting corporations, both general and special, subject to repeal or amendment at any time. It put to rest the controversies of the rent wars of the previous decade by abolishing all feudal real property tenures and perpetual leases, converting all long-term leaseholds into freeholds. It made the entire New York bench elective, and required appointment of a three-member commission to draw up a reformed procedural code.

Despite the sweep of innovation in the 1846 New York Constitution and its daughters in the west, the needs of certain groups in American society remained unmet. Chief among these were women. Feminists convened in Seneca Falls, New York, in 1848 and issued a manifesto on women's rights modeled on the Declaration of Independence, demanding voting rights, the recognition by law of full legal capacity, revision of male-biased divorce laws, access to the professions and to educational opportunity, and abolition of all discriminatory legislation.

Blacks in the northern states were no better off. After 1842, their situation, especially in areas near the slave states, became more precarious because of Justice Story's opinion in prigg v. pennsylvania (1842), upholding the constitutionality of the Fugitive Slave Act of 1793 and striking down inconsistent state legislation. After Prigg, most state personal liberty laws, such as those assuring jury trial to alleged fugitives or extending the writ of habeas corpus to them, were suspect. Abolitionists seized on a Story dictum in Prigg, stating that the states did not have to assist in fugitive recaptures under the federal act. They induced several state legislatures to enact statutes prohibiting state facilities from being used for temporary detention of alleged fugitives.

The slavery question briefly returned to Congress in 1842, in the form of the " Creole Resolutions" offered by Representative Joshua Giddings (Whig, Ohio). Slaves aboard the Creole, an American-flag vessel, mutinied on the high seas and made their way to the Bahamas, where most of them were freed by British authorities. Secretary of State Daniel Webster protested and demanded compensation for the liberated slaves. Giddings, despite the gag rule, introduced resolutions setting forth the Somerset -based position that the slaves had merely resumed their natural status, freedom, and could not be reenslaved. The federal government lacked authority to protect or reimpose their slave status, which was derived solely from Virginia law and hence confined to this jurisdiction. The House defeated the resolutions and censured Giddings. But he was reelected by a landslide, in effect forcing and winning a referendum on his antislavery positions. This, together with the earlier and ignominious failure of an effort to censure Representative John Quincy Adams for flouting the gag, led to the demise of the gag rules in both houses in 1844.

Such inconclusive sparring between slavery and abolition might have gone on indefinitely had it not been for the Mexican War. But proslavery ambitions to expand into the southwestern empire fundamentally altered the character of the American Union, destabilizing extant constitutional settlements and requiring new constitutional arrangements to replace the now obsolete missouri compromise.

annexation of texas had been controversial ever since Texan independence in 1836. When the issue reestablished itself on the national agenda in 1844, opponents of annexation, including Daniel Webster, Joseph Story, and John Quincy Adams, argued that annexation was not constitutionally permissible under the territories clause of Article IV, section 3, because previous annexations had been of dependent territories of sovereign nations, whereas Texas was itself an independent nation. Proponents dismissed this as an insignificant technicality, under the broad reading of the foreign affairs power by Chief Justice Marshall in american insurance co. v. canter (1828). Political opposition blocked ratification of an annexation treaty until President Tyler hit on the expedient of annexation by joint resolution of both houses, which required only a majority vote in each, rather than the two-thirds required for treaties in the Senate. Texas was thereby annexed in 1845.

Annexation hastened the deterioration of relations with Mexico, but Tyler was cautious and circumspect in his deployment of American forces in the areas disputed between Mexico and the United States. But the new President, james k. polk, ordered American ground forces into the area. After Mexican forces captured American soldiers, and the United States declared war, the question of the extent of the President's power to order American troops into combat areas reappeared regularly in congressional debates over military appropriations. In 1847, Whig Representative abraham lincoln offered the spot resolutions, demanding to know the spot on American soil where, according to Polk, Mexican troops had attacked Americans. This led to House passage of a resolution early in 1848 declaring that the Mexican War had been "unconstitutionally begun by the President." Military victories and the treaty of guadalupe hidalgo (1848) obviated this partisan measure, without providing any resolution to the question originally debated by James Madison and alexander hamilton in the Helvidius-Pacificus exchange of 1793 over whether there is an inherent executive prerogative that would embrace the power to commit troops to belligerent situations without explicit authorization by Congress. (See war, foreign affairs, and the constitution.)

In 1846, northern public opinion coalesced with remarkable unity behind the wilmot proviso, which would have prohibited the extension of slavery into any territories to be acquired as a result of the Mexican War. Alarmed by the extent and fervor of grassroots support for such exclusion in the free states, administration Democrats and southern political leaders offered three alternatives to it, plus an expedient designed to depoliticize the whole question. The earliest proposal was to extend the old Missouri Compromise line of 36 30 all the way to the Pacific coast with slavery excluded north of the line and permitted south of it. After a short-lived flurry of interest in 1847, this suggestion withered. The northern Democratic alternative to the Wilmot Proviso was widely known as popular sovereignty or, pejoratively, "squatter sovereignty." First proposed by Vice-President George M. Dallas and then associated with Michigan Senator Lewis Cass, popular sovereignty called on Congress to refrain from taking any action concerning slavery in the territories, leaving it to the settlers of the territories to determine the future of slavery there. The idea's principal appeal derived from its superficial and simplistic democratic appearance. But its vitality was due to an ambiguity that could not be indefinitely postponed, namely, when were the settlers to make that determination? By the southern interpretation, that decision could not be made until the eve of statehood, by which time, presumably, slaveholders could avail themselves of the opportunity of settling there with their slaves and thus give the territory a proslavery impetus it would never lose. (All prior American territorial settlements had either guaranteed property rights in extant slaves, such as the louisiana purchase treaty, or, like the Northwest Ordinance, had left existing pockets of slavery undisturbed as a practical matter despite their theoretical prohibition of slavery.) The northern assumption concerning popular sovereignty was that the territorial settlers could make their choice concerning slavery at any time in the territorial period, a position unacceptable to the South, which correctly believed that such an interpretation would exclude slavery.

The third alternative was embodied in resolutions offered by Calhoun in 1847. He proposed that the territories were the common property of all the states, and that Congress therefore could not prohibit citizens of any state from taking their property (including slaves) with them when they migrated into a territory. He also asserted that Congress could not refuse to admit a new state because it permitted slavery. After Calhoun's death in 1850, others advocated that Congress would have to protect the rights of slaveholders in all territories.

This selection of alternatives naturally influenced the presidential election of 1848. Democrats nominated Cass, thus providing some oblique endorsement of popular sovereignty, with its yet unresolved ambiguity. Whigs nominated the apolitical General zachary taylor and refused to endorse any party position at all on the various alternatives. Disgrunted elements of both parties in the northern states joined hands with the moderate, political-action abolitionists of the Liberty party to form the Free Soil party, which adopted the Wilmot Proviso as its basic plank, supplemented by the old Liberty party program of "divorce" of the federal government from support of slavery. Free Soil was an implicitly racist program, calling for the exclusion of all blacks from the territories to keep them open to white settlement, but that made it no less abominable to southern political leaders. The Whig victory in 1848 on its nonplatform merely postponed the resolution of what was rapidly becoming an urgent constitutional confrontation.

The American Union was in a far different condition in 1848 from what it had been at the onset of the Jacksonian era. The nation had increased in geographical extent by half. Such an immense increase necessitated a new or wholly revised constitutional order that could accommodate, if possible, the conflicting sectional expectations for the future of the western empire. All major constitutional events that had occurred at the national level since 1831 had made John Quincy Adams's prediction of that year all the more pertinent: the questions came ever closer to being settled at the cannon's mouth.

William M. Wiecek
(1986)

Bibliography

Bloomfield, Maxwell 1976 American Lawyers in a Changing Society, 1776–1876. Cambridge, Mass.: Harvard University Press.

Dumond, Dwight L. 1961 Antislavery: The Crusade for Freedom in America. Ann Arbor: University of Michigan Press.

Friedman, Lawrence M. 1973 A History of American Law. New York: Simon & Schuster.

Haar, Charles M., ed. 1965 The Golden Age of American Law. New York: Braziller.

Horwitz, Morton J. 1977 The Transformation of American Law, 1780–1860. Cambridge, Mass.: Harvard University Press.

Hurst, James Willard 1956 Law and the Conditions of Freedom in the Nineteenth-Century United States. Madison: University of Wisconsin Press.

Hyman, Harold M. and Wiecek, William M. 1982 Equal Justice under Law: Constitutional Development, 1835–1875. New York: Harper & Row.

Levy, Leonard W. 1957 The Law of the Commonwealth and Chief Justice Shaw: The Evolution of American Law, 1830–1860. Cambridge, Mass.: Harvard University Press.

Wiecek, William M. 1977 The Sources of Antislavery Constitutionalism in America, 1760–1848. Ithaca, N.Y.: Cornell University Press.

Zainaldin, Jamil 1983 Law in Antebellum Society: Legal Change and Economic Expansion. New York: Knopf.