CONSTITUTIONAL HISTORY, 1848–1861

In American constitutional history, the years 1848 to 1861 ordinarily appear as a prelude to revolution, a time of intense controversy without significant change. Yet in at least two respects this impression is mistaken. First, constitutional change, though minimal in the national government, was widespread and vigorous among the states during the antebellum period. Second, if the structure of party politics is included (as it should be) in one's purview of the American constitutional system, then the 1850s, like the 1860s, were a decade of revolution.

Powerful social forces exerted pressure upon the constitutional order at mid-century. Mass immigration reached its first crest, with more than two million persons arriving in the years 1849–1854. This great influx caused much concern about the effects of ethnic diversity upon the quality of national life and upon the American experiment in self-government. At the same time, the progress of industrialization and business enterprise was rapidly changing the economic face of the agricultural nation for which the Constitution had been written. The railroads alone, as they tripled their mileage in the 1850s and thus accelerated their transformation of domestic commerce, confronted government with a host of new issues and problems, ranging from the regulation of capital formation to the determination of corporate liability in tort law. Still another major force at work was the continuing westward expansion of American sovereignty and American people. The United States in 1848 was a transcontinental nation that had acquired forty percent of all its territory in the preceding three years. Occupation and assimilation of this new Western empire, extending from the mouth of the Rio Grande to the waters of Puget Sound, would absorb much national energy throughout the rest of the century. The process in itself placed no heavy strains upon the constitutional system. For the most part, it required only the further use of already tested forms and practices, such as territorial organization. But in the antebellum period, westward expansion became irredeemably entangled with still another formidable social force—the increasingly ominous sectional conflict over slavery.

The federal government, while extending its rule to thePacific Ocean in the antebellum period, underwent little structural change. The Constitution had not been amended since 1803. Far fewer amendments than usual were proposed from 1848 to 1860, and none of them passed either house of Congress. (Prominent among those introduced were proposals for the popular election of senators and postmasters.) During the secession winter of 1860–1861, however, Congress received nearly two hundred proposed amendments. Most of them were aimed at dampening the crisis by offering concessions or guarantees to the South on such subjects as slavery in the territories and the district of columbia, the domestic slave trade, fugitive slaves, and the right to travel with slaves in free states. Only one of these efforts proved successful to the point of passing both houses, but ratification in the states had scarcely begun before it was interrupted and canceled by the outbreak of hostilities. This abortive "Thirteenth Amendment" would have forbidden any amendment authorizing Congress to interfere with slavery as it existed in the states, thereby presumably fixing a double lock on the constitutional security of the institution. (See corwin amendment.)

Besides formal amendment, constitutional change may be produced by other means, such as legislative enactment and judicial decision. Congress altered the structure of the executive branch in 1849, for instance, by establishing a Department of the Interior. To it were transferred a number of agencies previously housed in other departments, notably those administering patents, public lands, military pensions, and Indian affairs. Congress in 1849 also created the new office of "assistant secretary" for the Treasury Department, adding a similar position to the Department of State four years later. The federal bureaucracy as a whole grew appreciably in the antebellum period, but largely because of the necessary expansion of the postal system. Of the 26,000 civilian employees in 1851 and 37,000 in 1861, eighty percent were in the postal service. Only six percent performed their duties in the capital. On the eve of the civil war, the whole Washington bureaucracy numbered about 2,200. The Department of State got along throughout the 1850s with a staff of thirty persons or fewer. The presidency remained a very simple affair with practically no official staff. Not until 1857 did Congress provide funds even for a private secretary and a messenger.

The federal government accepted few new responsibilities during the antebellum period. Enlargement of its role was inhibited by the economic principle of laissezfaire, by the constitutional principles of strict construction and federalism, and by the inertial influence of custom. Most of the governmental activity affecting the lives of ordinary citizens was carried on by the states and their subdivisions. Any effort to extend national authority usually met resistance from Southerners worried about the danger of outside interference with slavery. Congressional reluctance to expand federal power is well illustrated in the history of the first successful telegraph line, run between Washington and Baltimore in the mid-1840s. Built with federal money and put in commercial operation as a branch of the postal system, it was very soon turned over to private ownership. When Congress did occasionally become venturesome, presidential disapproval might intervene. james k. polk and Franklin Pierce, citing constitutional reasons, vetoed several internal improvements bills. james buchanan expressed similar scruples in vetoing homestead legislation and land grants for the support of colleges. Sometimes a new social problem or need did evoke federal intervention, such as laws providing for safety inspection of steamboats and for minimum health standards on ocean-going passenger ships. Perhaps most significant was the expanded use of federal subsidies, in the form of land grants or mail contracts, to support railroad construction, steamship lines, and overland stagecoach service to the Pacific.

Although the three branches of the federal government remained fairly stable in their relationships to one another during the antebellum period, there was some shift of power from the presidency to Congress. The change is commonly viewed as a decline in presidential leadership, but it must be attributed to other factors as well, including the intensity of the sectional conflict. Congress could quarrel violently over slavery, then arrange some kind of truce, and thus perform admirably its function as a deliberative assembly. The President, on the other hand, could take no vigorous action, make no substantial proposal in respect of slavery without infuriating one side or the other.

For various reasons, none of the Presidents between andrew jackson and abraham lincoln served more than a single term, and only one, martin van buren, was even renominated. Polk's energetic foreign policy and successful prosecution of the war with Mexico strengthened the presidency for a time, but by 1848 sectional strains and party dissension had put his administration in disarray. Zachary Taylor and Millard Fillmore were committed as Whigs to the principle of limited executive power. They did not exercise the veto power, for instance, and were the last Presidents in history to refrain from doing so. Taylor, to be sure, proved unexpectedly stubborn on the slavery issue and seemed headed for a collision with Congress until his sudden death in the summer of 1850 cleared the way for compromise. During the great sectional crisis of 1846–1850, the Senate reached its peak of oratorical splendor and national influence. john c. calhoun, henry clay, and daniel webster were the most famous men in America, and the outstanding political figure of the decade that followed was not a President but a senator—stephen a. douglas. Most of the leading cabinet members of the 1840s and 1850s (Webster, Calhoun, Buchanan, Robert J. Walker, John M. Clayton, jefferson davis, Lewis Cass) were recruited directly from the Senate. Lincoln, after his election in 1860, filled the three top cabinet positions with Republican senators. The appearance of presidential weakness in the 1850s was therefore partly a reflection of senatorial prestige.

If Pierce and Buchanan were among the most ineffectual of American Presidents, as they are commonly portrayed, it was not for lack of trying to be otherwise. Both men regarded themselves as Jacksonian executives. Together they exercised the veto as often as Jackson in his two terms (though Pierce's negatives were usually overridden). Both took stern attitudes toward groups whom they labeled rebellious—namely, the free-state forces in Kansas and the Mormons in Utah. Both conducted a vigorously expansionist foreign policy, having in mind especially the acquisition of Cuba. Both made energetic use of patronage to coerce votes from Congress on critical measures—the kansas-nebraska act in 1854 and the admission of Kansas with a proslavery constitution in 1858. (See lecompton constitution.) Their fatal mistake was in misjudging the moral and political strength of the antislavery crusade. Seeking to discredit and dissipate the movement rather than accommodate it, they pursued policies that disastrously aggravated the sectional conflict and thereby brought the Presidency into disrepute. Then, in the final crisis of 1860–1861, Buchanan's constitutional scruples and his reluctance to use presidential power without specific congressional authorization lent substance to the fainéant image that history has fixed upon him. Again, as in 1850, the fate of the country seemed to rest primarily with the Senate, and when compromise failed in that body, little hope remained for peaceable preservation of the Union.

Meanwhile, the Supreme Court had tried its hand at resolving the slavery question and in the process had reasserted its power to review congressional legislation. The famous decision in dred scott v. sandford (1857) invalidated a law that had been repealed three years earlier—the 3630 restriction of the missouri compromise. Consequently, it did not put the Court into confrontation with Congress. Like the policies of Pierce and Buchanan, however, the decision outraged antislavery opinion and aggravated the sectional conflict. Thus the Court, like the presidency, entered the Civil War with lowered prestige.

At the level of state rather than national government, antebellum Americans acted very much in accord with the Jeffersonian credo that every generation should write its own fundamental law. The period 1830 to 1860 has been called "the high water mark for the making of constitutions among the states." During those three decades, ten new states framed their first constitutions, and eighteen of the other twenty-four revised their constitutions by means of conventions. In addition, many states added amendments from time to time through legislative action. The voters of Massachusetts, for instance, rejected a new constitution drafted by a convention in 1853, but they approved of six amendments in 1855, three in 1857, one in 1859, and two in 1860.

State constitutions became longer in the antebellum period, not only describing in greater detail the structure and functions of government but also incorporating many specific instructions and prohibitions intended to set public policy and control the substance of governmental action. The machinery for constitutional change remained heterogeneous, generally cumbersome, and, in some states, poorly defined. There was a clear trend, however, toward popular participation at every stage. Typically, voters decided whether a convention should be called, elected its members, and passed judgment on its handiwork. Legislative amendment, which bypassed the convention process and often had to be approved by two successive legislatures, was always submitted to the voters for ratification.

Democratization of the state constitutional systems, begun earlier in the century, proceeded unremittingly during the antebellum period. Two major categories of change were further extension of the franchise and further lengthening of the list of elective offices. With but a few exceptions, the old religious and property-holding qualifications for suffrage disappeared, although some states continued to require that voters be taxpayers. Under nativist influence, Connecticut in 1855 and Massachusetts in 1857 sought to curtail immigrant participation in politics by installing an English literacy test. But a stronger contrary tendency, exemplified in the constitutions of Wisconsin (1848), Michigan (1850), Indiana (1851), and Kansas (1859), was to expand the immigrant vote by enfranchising foreigners as soon as they had declared their intention to become citizens. Women were everywhere excluded from the polls, except in a few local elections, and blacks could vote only in a half-dozen northeastern states, but white male suffrage had become almost universal. The shift from appointive to elective offices was most dramatic in the case of the judiciary. Until 1846, only a few states had elective judgeships of any kind, and only in Mississippi were all judges elected. In that year both New York and Iowa followed the Mississippi example, and then the rush began. By 1861, twenty-four of the thirty-four states had written the election of judges into their constitutions, though in five of them the change did not extend to their supreme courts.

The antebellum state constitutions, like those written earlier, were primarily constructive. They established or redesigned systems of government and endowed them with appropriate powers. But in many there was also a conspicuous strain of negativism, reflecting disillusionment with state government and a determination to curb extravagance, corruption, and favoritism. Notably, the framers often placed new restrictions on legislative authority, particularly with reference to public finance, banks, and corporations. These subjects were political issues, of course, but then every constitutional convention became to some extent a party battle. As a rule, Democrats were more hostile than their opponents to corporate enterprise and government promotion of it. Attitudes varied according to local circumstances, however, and much depended upon which party in the state had the upper hand at the time. The states of the Old Northwest, where prodigal internal improvement policies in the 1830s had proved disastrous, were especially emphatic in their restraint of legislative power. Their new constitutions approved in the years 1848–1851 forbade state investment in private enterprise and put strict limits on public indebtedness. They also restricted banking in various ways, such as ordering double liability for stockholders, prohibiting the suspension of specie payments, and requiring that any general banking act must be submitted to a popular referendum.

State constitutional change occurred in many ways and resulted from the work of many hands, including those of voters, convention delegates, legislators, governors, and judges. Appellate courts particularly often shaped or re-shaped the fundamental law in the course of performing their routine duties, although judicial review of state legislation by state courts was a fairly rare occurrence until after the Civil War. Despite all the constitutional activity, innovation was by no means the dominant mode in the antebellum period. States borrowed much from one another, and old forms were sometimes retained well beyond the limits of their appropriateness. Vermont in 1860 still had its quaint Council of Revision, elected every seven years to examine the condition of the constitution and propose amendments. North Carolina had not yet given its governor a veto power, and in South Carolina, the legislature continued to choose the state's presidential electors. Yet the new problems of the age did encourage some experimentation. For example, certain states had begun to develop the quasi-judicial regulatory commission as an extra branch of government, and framers of the Kansas constitution in 1859 introduced the item veto, a device that most states would eventually adopt.

Although federal and state constitutional development proceeded in more or less separate grooves, the fundamental constitutional problem of the age was the relation between the nation and its constituent parts. The problem had been present and intermittently urgent since the birth of the republic, but after 1846 it became associated much more than ever before with the interrelated issues of slavery and expansion and with the dynamics of party politics.

In the federal system established by the Constitution, the national government and the state governments were each supreme within their respective spheres. This principle of dual federalism, even though it accorded rather well with the actual structure and distribution of governmental power in antebellum America, was by no means universally accepted as a true design of the Republic. Nationalists like Webster and Lincoln asserted the primacy of the nation, the sovereignty of its people, and the perpetuity of the Union. Sectionalists like Calhoun and Davis lodged sovereignty with the states, insisted upon strict construction of federal authority, and viewed the Union as a compact that could be abrogated. Logical consistency was not a characteristic of the intersectional debate, however. Both proslavery and antislavery forces invoked federal power and appealed to states' rights whenever either strategy suited their purposes. With regard to the recovery of fugitive slaves, for instance, Southerners demanded expansion and vigorous use of national authority, while the resistance to that authority of some northern state officials amounted to a revival of nullification. (See union, theories of the.)

Most Americans agreed that slavery was a state institution, but from that premise they drew conflicting inferences. In the radical antislavery view of salmon p. chase, the institution had no standing beyond the bounds of slave-state jurisdiction, and the federal government had no constitutional power to establish it, protect it, or even acknowledge its legal existence. In short, slavery was local and freedom national. (See abolitionist constitutional theory.) According to Calhoun, however, the federal government, as the mere agent of the states, was constitutionally obligated to give slavery as much protection as it gave any other kind of property recognized by state law. Only the sovereign power of a state could restrict or abolish the institution. In short, slavery was national and antislavery the local exception.

The practice of the United States government over the years ran closer to Calhoun's theory than to Chase's. All three branches recognized property rights in slaves and extended aid of some kind to their masters. Congress went beyond the requirements of the Constitution in making the recovery of fugitive slaves a federal business, and under congressional rule the national capital became a slave state in miniature, complete with a slave code, whipping posts, and a thriving slave trade. The image of the nation consistently presented in diplomatic relations was that of a slaveholding republic. With a persistence amounting to dedication, the Department of State sought compensation for owners of slaves escaping to foreign soil, and repeatedly it tried to secure Canadian cooperation in the return of fugitives. In the Dred Scott decision, Chief Justice roger b. taney laid down the one-sided rule that the federal government had no power over slavery except "the power coupled with the duty of guarding and protecting the owner in his rights."

To be sure, national authority was also used for antislavery purposes. In outlawing the foreign slave trade, Congress plainly acted within the letter and intent of the Constitution. In prohibiting slavery throughout much of the Western territory, however, the lawmakers probably drew as much sanction from the example of the north-west ordinance as from the somewhat ambiguous passage in Article IV, section 3, that seemed to be relevant—namely, "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." By 1840, such prohibition had been enacted in six territorial organic acts, as well as in the Missouri Compromise. Furthermore, Chief Justice john marshall in american insurance company v. canter (1828) had given the territory clause a broad construction. In legislating for the territories, he declared, "Congress exercises the combined powers of the general and of a State government." Since the authority of a state government to establish or abolish slavery was generally acknowledged, Marshall's words seemed to confirm Congress in possession of the same authority within the territories.

The constitutionality of legislation excluding slavery from federal territory did not become a major issue in American public life until after introduction of the wilmot proviso in 1846. Although the question had arisen at times during the Missouri controversy of 1819–1820, the famous 36°30' restriction had been approved without extensive discussion and with the support of a majority of southern congressmen. The subject had arisen again during the 1830s, but only as a secondary and academic consideration in the debate over abolitionist attacks upon slavery in the District of Columbia. As a practical matter, the Missouri Compromise had presumably disposed of the problem by reviving and extending a policy of having two different policies, one on each side of a dividing line. North of that line (first the Ohio River and then 36°30'), slavery was prohibited; south of the line, slavery was permitted if desired by the white inhabitants.

In the summer of 1846, with Texas annexed and admitted to statehood, with title to Oregon secured by treaty, and with the war against Mexico under way, the United States found itself engaged in territorial expansion on a grand scale. Texas entered the Union as a slaveholding state, and Oregon was generally understood to be free soil, but what about New Mexico and California, if they should be acquired by conquest? To many Americans, including President Polk, the obvious answer seemed to be extending the Missouri Compromise line to the Pacific Ocean. But the issue arose at a time when sectional antagonism had been inflamed by a decade of quarreling over abolitionist petitions, the gag rule, and the Texas question. Furthermore, whereas the 36°30' line had meant partial abolition in a region previously open to slavery, extension of the line through New Mexico and California would have meant a partial rescinding of the abolition already achieved there by Mexican law. So David Wilmot's proposal to forbid slavery in any territory that might be acquired from Mexico won the overwhelming approval of northern congressmen when it was introduced in the House of Representatives on August 8, 1846. Southerners were even more united and emphatic in their opposition; for the Proviso would have completed the exclusion of slaveholders from all the newly acquired land in the Far West. Such injustice, they warned, could not fail to end in disunion.

The Proviso principle of "no more slave territory" quickly became the premier issue in American politics and remained so for almost fifteen years. Virtually the raison d'être of the Free Soil and Republican parties, the principle was rejected by Congress in 1850 and again in 1854, deprived of its legitimacy by the Supreme Court in 1857, and supported by less than forty percent of the electorate in the presidential contest of 1860. Yet forty percent proved sufficient to put a Republican in the White House and thereby precipitate secession. During those years of intermittent sectional crisis from 1846 to 1861, the Southerners and northern conservatives who controlled government policy sought desperately and sometimes discordantly for a workable alternative to the Proviso. One thing that complicated their task was the growing tendency of all elements in the controversy to constitutionalize their arguments.

Southerners especially felt the need for constitutional sanction, partly because of their vulnerability as a minority section but also in order to offset the moral advantage of the antislavery forces. It was not enough to denounce the Proviso as unfair; they must also prove it to be unconstitutional despite the string of contrary precedents running back to the venerated Northwest Ordinance. One way of doing so was to invoke the Fifth Amendment, arguing that any congressional ban on slavery in the territories amounted to deprivation of property without due process of law. But this argument, though used from time to time and incorporated rather vaguely in Taney's Dred Scott opinion, did not become a significant part of anti-Proviso strategy. For one thing, the Fifth Amendment had another cutting edge, antislavery in its effect. Free Soilers and Republicans could and did maintain that slavery was illegal in federal territory because it amounted to deprivation of liberty without due process of law.

More in keeping with the strict constructionism generally favored by Southerners was the principle of "nonintervention," that is, congressional nonaction with respect to slavery in the territories. Actually, nonintervention had been government policy in part of the West ever since 1790, always with the effect of establishing slavery. But in earlier years the policy had been given little theoretical underpinning. Then, after the introduction of the Wilmot Proviso, there were strenuous efforts to convert nonintervention into a constitutional imperative. The emerging argument ignored Marshall's opinion in American Insurance Company v. Canter and held that the territory clause of the Constitution referred only to disposal of public land. In providing government for a territory, Congress could do nothing more than what was absolutely necessary to prepare the territory for statehood. That did not include either the prohibition or the establishment of slavery. Thus nonintervention became a doctrine of federal incapacity. It left open, however, the question of what authority prevailed in the absence of congressional power. One answer, associated with Calhoun, was that property rights in slavery were silently legitimized in every territory by the direct force of the Constitution. Another answer, associated with Lewis Cass and Douglas, was that nonintervention meant leaving the question of slavery to be decided by the local territorial population. The latter theory, given the name popular sovereignty, had the advantage of seeming to be in tune with the spirit of Jacksonian democracy.

Thus, by 1848, when American acquisition of New Mexico and California was confirmed in the treaty of guadalupe hidalgo, four distinct solutions to the problem of slavery in the territories had emerged. At one political extreme was the free soil doctrine requiring enactment of the Wilmot Proviso. At the other extreme was the Calhoun property rights doctrine legitimizing slavery in all federal territory by direct force of the Constitution. Between them were two formulas of compromise: extension of the 3630 line and the principle of popular sovereignty. Presumably the choice rested with Congress, but the constitutionalizing of the argument opened up another possibility—that of leaving the status of slavery in the territories to judicial determination. Legislation facilitating referral of the question to the Supreme Court was proposed in 1848 and incorporated in the historic set of compromise measures enacted two years later. The compromise of 1850 admitted California as a free state, but for the rest of the Mexican Cession it adopted the principle of nonintervention. The effect was to reject the 3630 and Proviso solutions while leaving the field still open to popular sovereignty, the property rights doctrine, and judicial disposition.

Although neither of the major parties took a formal stand on the territorial question in the elections of 1848 and 1852, it was the Democrats who became closely associated with the principle of nonintervention. Cass, their presidential nominee in 1848, declared that Congress lacked the power to prohibit slavery in the territories and that the territorial inhabitants should be left free to regulate their internal concerns in their own way. This seemed to endorse popular sovereignty as the appropriate corollary to nonintervention, but for about a decade the Democratic party managed to invest both terms with enough ambiguity to accommodate both its northern and southern wings. More specifically, Southerners found that they could assimilate popular sovereignty to their own purposes by viewing it as the right of a territorial population to accept or reject slavery at the time of admission to statehood. That would presumably leave the Calhoun doctrine operative during the territorial period. At the same time, northern Democrats like Douglas went on believing that popular sovereignty meant the right of a territorial legislature to make all decisions regarding slavery, within the limits of the Constitution. The Whigs failed to achieve any such convenient doctrinal ambiguity, and that failure may have contributed to the disintegration of their party.

In 1854, a heavily Democratic Congress organized the territories of Kansas and Nebraska, repealing the antislavery restriction of the Missouri Compromise and substituting the principle of nonintervention. "The true intent and meaning of this act," the measure declared, "[is] not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States." This passage, since it could be interpreted to mean either the northern or the southern brand of popular sovereignty, preserved the ambiguity so necessary for Democratic unity. But of course the Kansas-Nebraska Act, by removing a famous barrier to slavery, provoked a storm of anger throughout the free states and set off a political revolution.

The crisis of the late 1850s was in one respect a confrontation between the emerging Republican party and the increasingly united South—that is, between the Wilmot Proviso and the principles of Calhoun. Yet it was also a struggle within the Democratic party over the meaning of nonintervention and popular sovereignty. The Dred Scott decision in March 1857 cleared the air and intensified the crisis. In ruling that Congress had no power to prohibit slavery in the territories, the Supreme Court officially constitutionalized the principle of nonintervention and virtually rendered illegal the main purpose of the Republican party. But Chief Justice Taney went further and disqualified the northern Democratic version of popular sovereignty. If Congress had no such power over slavery, he declared, then neither did a territorial legislature. Douglas responded with his freeport doctrine, insisting that a territorial government, by unfriendly legislation, could effectively exclude slavery, no matter what the Court might decide to the contrary. Southern Democrats, in turn, demanded federal protection of slavery in the territories, and on that issue the party split at its national convention in 1860.

By 1860 it had become apparent that slavery was not taking root in Kansas or in any other western territory. Yet when secession began after Lincoln's election, the efforts at reconciliation concentrated on the familiar territorial problem. The centerpiece of the abortive Crittenden compromise was an amendment reviving and extending the 3630 line, so recently outlawed by the Supreme Court. This continued fascination with an essentially empty issue was not so foolish as it now may seem; for the territorial question had obviously taken on enormous symbolic meaning. Because of the almost universal agreement that slavery in the states was untouchable by the federal government, the territories had come to be the limited battleground of a fierce and fundamental struggle. Thus the sectional conflict of the 1850s, whatever its origins and whatever its substance, was decisively shaped by constitutional considerations.

Don E. Fehrenbacher
(1986)

Bibliography

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Parkinson, George Phillip, Jr. 1972 "Antebellum State Constitution-Making: Retention, Circumvention, Revision." Ph.D. dissertation, University of Wisconsin.

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