Constitutional Resistance in the States Between Reconstruction and the New Deal

Abstract

Although the Federalist Papers anticipate a role for states in interpreting the federal Constitution, many argue that institutional changes and post-Civil War norms largely confined state constitutional interpretation to judicial arenas. By using state legislative journals and sessions laws, as well as contemporary newspaper coverage, I demonstrate that elected state officials remained active participants in national constitutional politics between Reconstruction and the New Deal.

First, contrary to claims that states’ rights arguments have served primarily as a cover for southern racial conservatism, non-southern states were more likely to invoke constitutional federalism, for progressive as well as conservative ends. While the racial conservatism of Southern Democrats led to the most intense and consequential invocations of states’ rights, as we might expect from a southern political order organized around the maintenance of white supremacy, Southern states almost exclusively confined federalist objections to racialized issues, otherwise tending toward tolerance or enthusiasm in support of federal power. Instead, it is Northerners, Republican and Democrats alike, who were more willing to have states assert independent constitutional authority across a variety of issues. In short, while the Civil War discredited nullification, a moderate states’ rights position survived to represent a broad consensus which lay between John Calhoun’s state sovereignty and a centralizing nationalism.

Second, constitutional theories privileging non-judicial actors ought to incorporate state constitutional politics, which have offered extrajudicial interpretive discourse as sophisticated as debates in Washington. Beliefs about the Constitution and its obligations have meaningfully constrained the political behavior of state officials, even when doing so is electorally unwise. Thus, this research serves as a friendly amendment to theories of “popular constitutionalism” criticized for ignoring states and a general lack of institutional grounding.

Finally, states have provided a venue to keep constitutional conflicts alive by expanding the scope of that conflict to a new, institutionally legitimate forum that can avert issue settlement until the losing side regains control of national institutions.

Historical case studies considered include race (the Civil Rights Cases, Blair Bill, and the 15th Amendment/Lodge Bill), the Sheppard Towner Maternity Act, national prohibition, wiretapping, and economic rights/the liberty of contract.