The Civil War did not settle the relationship between the federal and state governments. At the core of the American constitutional system is the commitment to continued conflict over the proper location and extent of political power.
In her most recent article, Linda Greenhouse, legal correspondent emeritus for the New York Times, sought to deliver some much needed news to critics of the new health care law: “Breaking News: The Civil War is Over.” Greenhouse’s central contention was that attempts by states to assert their citizens’ freedom from federal legislation requiring them to purchase health care insurance, as Virginia did with its Virginia Health Care Freedom Act (VHCFA), were not valid. Not only that, but the question of validity had been settled nearly one and a half centuries ago by the Civil War. She adduces as support for her argument the recent federal appeals court decision finding that Virginia lacked standing to sue the federal government, which lack they unsuccessfully sought to remedy with the VHCFA. For Greenhouse, the Civil War settled the question of the states’ ability to challenge the federal government. And she can’t understand why everyone else doesn’t see that.
Curiously, Greenhouse doesn’t really unpack the theme of her piece, that the Civil War is over. Indeed, it is used more as a bludgeon than an argument. It is axiomatic and therefore requires no elaboration. The closest she gets to explaining why the Civil War connection is relevant is a short exercise in equivocation. Of the Virginia Health Care Freedom Act she writes:
In other words, a few weeks shy of the 150th anniversary of Virginia’s “ordinance of secession,” the Commonwealth of Virginia seceded from the reach of the federal health care law’s individual mandate.
So, to review: Virginia’s attempt to prevent the enforcement of health care legislation is unconscionable and ridiculous because it is tantamount to its secession from the Union in 1861, and the Civil War put an end to all of that secession talk. I see.
Settlement vs. Engagement
While there is much to object to in Greenhouse’s piece she must nonetheless be taken seriously, for her view is widely held. It is commonly thought that conflict has no place in our constitutional politics, that there is no justifiable reason for states to confront the federal government over exercises of power. And if any historical event established this, it was the Civil War. On this view, questions of political power have been clearly settled and it is improper to question or violate that settlement. The opposing view, the one held by some critics of the health care law, is that in certain areas the location and extent of government power should be decided by engagement between the federal and state governments. A simple illustration helps bring out the difference between these two views. Whereas Greenhouse sees Virginia as the man who sought to gain property by fencing in his neighbor’s land, critics of the health care law interpret Virginia’s legislation as an attempt to erect a fence on the proper boundary between properties. Even as Virginia’s actions could be construed as a hostile power grab—as Greenhouse seems to think—they can also be seen as an attempt to clarify what is the rightful role of state government and to prevent federal encroachment. The former interpretation sees Virginia’s actions as offensive, while the latter as defensive. To decide between these two possibilities we must examine the nature of the state-federal relationship as outlined in the Constitution.
According to the original constitutional design, the people had twofold representation in the national legislature. Representation in the House was direct, conducted through popular vote; in the Senate representation was indirect, conducted by state legislatures appointing senators. In this way the Senate provided for state representation in the national government, because state-based political actors were empowered to appoint its members. Questions of the rightful exercise of government power—of which things were best done by states and which by the federal government—were to be settled by agreement between the two chambers; both House and Senate had to sign off on a piece of legislation before it could be sent to the president. In this structural feature we see the genius of the Founders, the creation of a Constitution that is, in the words of James Madison, “neither a national nor a federal Constitution, but a composition of both.” Over four decades later, in the early stages of the secession crisis, Madison would re-articulate this view:
In order to understand the true character of the Constitution of the U.S. the error, not uncommon, must be avoided, of viewing it through the medium either of a consolidated Government or of a confederated Gov[ernment], whilst it is neither the one nor the other, but a mixture of both. And having in no model the similitudes & analogies applicable to other systems of Gov[ernment] it must more than any other be its own interpreter, according to its text & the facts of the case.
Madison was keenly aware of the differences of opinion present at the Constitutional Convention, foremost among them over the relationship between the states and the proposed central government. It would not do to attempt to draw “the proper line of partition between the authority of the general and that of the State governments,” for the effort would be frustrated by the vagueness of the intended division, the flaws of the human mind, the inaccuracy of the terms, and “the pretensions of the larger and smaller States” (Federalist 37). Thus, eschewing “parchment barriers,” the Constitution would rely on institutional arrangements and modes of representation to determine the allocation of political power. Further, the arrogation of power into the hands of a single official or branch would be prevented by connecting constitutional rights with the self-interest of the office holders. As Madison explained in Federalist 51,
[T]he greatest security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist the encroachments of the other…Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.
Conflict between political offices and institutions was at the heart of the initial constitutional settlement, and it was intended to serve the constitutional ends of liberty and consensual governance.
In this way, the Constitution internalized the Convention’s disagreement over the distribution of power between levels of government. Guided by and in conformity with the powers delegated to the federal government, the boundary line between governments would be established through debate and legislation. The advocates of the Constitution saw the conflictual character of the proposed political system as enabling a great deal of flexibility. By leaving the proper location and extent of many political powers up for negotiation, the people were not locked into a rigid dispensation of powers that technological advancement, emergencies, or other exigencies could prove outmoded. Acknowledging the pervasive distrust of a central government, Madison argued that the proposed constitutional system would allow for the national government to assume greater powers “[i]f…the people should in the future become more partial to the federal than to the State governments….” In the event state governments proved to be ineffective or impotent, the people “ought not surely to be precluded from giving most of their confidence where they may discover it to be most due…”
What the Civil War Did—and Did Not—Do
In the run-up to the Civil War the essential indeterminacy of the state-federal relationship was at the center of political debate, for it was the understanding of this relationship that would determine the legitimacy of state actions like nullification and secession. Evidence of the range of possible interpretations of this relationship is found in the two prominent theories of the decades preceding the Civil War: John Calhoun’s states’ rights and Abraham Lincoln’s unionism. The essential difference between these positions was the prioritization of union and the direction of deference between the federal and state governments. Whereas Lincoln prioritized the integrity of the Union and thought states should defer to national decision-making, Calhoun saw the states as playing a more decisive political role and able, when necessary, to invalidate the enforcement of national decisions. (This is, of course, a hasty and extremely simplified summary of the two views.) Citing these two as examples of possible interpretations of the state-federal relationship is emphatically not to argue that they are of equal merit. It is, however, to draw attention to the rationale put forth by both sides. Advocates of each position marshaled strong arguments rooted in the Constitution and American history for why their position was correct. They were, in other words, offering interpretations of the Constitution’s indeterminate state-federal relationship, proposals for what each level of government could and could not lawfully do.
The Civil War did not resolve the fundamental tension the Constitutional Convention sought to preserve. The extent of the Civil War’s meaning was worked out through Reconstruction, the post-war constitutional amendments, and the epochal changes in American socio-political life that occurred well into the twentieth century. There is no doubt that the war set in motion the changes that finally enshrined in law the Declaration of Independence’s claim of equality and established the integrity of the Union. But for all of this, the Civil War did not exhaustively parcel out powers between the federal and state governments. Though the arguments and regiments of the seceding states did not win the day, the result of their loss was not a clear line dividing state from federal government. That line was left undrawn, just as in the Constitution of 1787. The basic nature of the Union’s constituent members was preserved. The federal government remained a government of delegated and enumerated powers, and the state governments of general jurisdiction.
Thus when Greenhouse argues that state attempts to counteract the Affordable Care Act are invalidated by the fact of the Civil War, the most appropriate response may well be to scratch one’s head and wonder what exactly she means. Virginia’s Health Care Freedom Act and the legal battle it precipitated is but the latest round of conflict intended to clarify the proper role of government in American life. We can all agree with Greenhouse that the Civil War is over, but the conflict over the line dividing the national and state governments did not end with Lee’s surrender at Appomattox Court House. Rather than resort to hyperbole and the red herring of secession when such conflict arises, we should welcome it as evidence of the continued pursuit of Lincoln’s hope for a government of, by, and for the people.
A member of the Humane Pursuits editorial board, Connor Ewing is a doctoral candidate in Government at the University of Texas. He has worked in philanthropy and public policy in D.C. and the Midwest. Connor is to Humane Pursuits what Artificial Reason was to Sir Coke’s notion of law: the accretion of insight, the knowledge of the ages—what Russell Kirk, in his characteristically lapidary way, termed the wisdom of the species. It thus follows that the quality of his work is wholly dependent on the other writers. Accordingly all errors, muddled arguments, and tired cliches should be attributed to them, with each receiving an equal portion of the blame.