Government: State

The states of the United States of America are among the basic political units of the federal system as defined in the Constitution. They perform all of the domestic tasks usually assigned traditional nation-states in other parts of the world. Basic rights are given force of law in state constitutions and legislative form by state assemblies. State governments are responsible for defining criminal and civil procedures for administering justice and settling disputes among citizens.

As the principal authority of a specific region, state governments fill a primary role in the provisioning and administering of internal improvements, such as roads, waterworks, and schools, either directly or indirectly (through counties and cities), as may be directed by the specific provisions of their respective constitutions. They may also grant articles of incorporation to both public and private enterprises. Their central role in local internal matters developed out of their existence as distinct political entities that predated the ratification of the Constitution in 1789. Their origins extend back to the colonial charters of the original thirteen colonies. Indeed, to properly understand the constitutional relationship of the states to the national government and the reasons for their dominance of local affairs, it is imperative to understand their earlier origins as colonies of the British Empire.

colonial origins of the states

Each colony of British North America had its own distinctive history and motive for settlement. In each case the king recognized a legal existence through the granting of special articles of incorporation to either a company of men or a single proprietor. These articles of incorporation were called charters.

The earliest American colonial projects developed for many reasons, but from the perspective of the crown they were principally of a business nature. Even the Massachusetts Bay Company was to develop land and seek out commercially viable products for trade, though the merchants who formed the company were seeking religious freedom for their Puritan coreligionists. The Virginia Company was entirely commercial, focusing on the prospects for gold and mercantile development. In both cases, what began as an essentially private concern was transformed by the mid-eighteenth century into a public, political entity whose primary purpose was to administer a specific territory. This was typically accomplished through a mixture of representative assemblies, a council of advisors, and a governor appointed either by a proprietor in whose name the colony operated, or directly by the king. In each case the crown retained control of the appointment of governors, requiring proprietors to submit their nominations for approval before commissioning. That said, the legislatures of all the colonies were well developed by the early 1700s and possessed the major portion of influence in local affairs, even setting the salaries of royal governors and magistrates. By 1750 friction between America and England would erupt along these very lines, setting royal governors against colonial assemblies.

from colonies to states

Until the end of the Seven Years' War (or what was called in America the French and Indian War [1756–1763]), the colonies had been left largely to themselves. It was in this period that the colonies developed the habit of self-government, conducting most matters of a domestic nature on the basis of their own taxing powers, their own rules of local representation, and their own systems of adjudication. With the defeat of the French in North America in 1760, however, England turned its attention to its American possessions and, needing resources to extend its imperial objectives, looked to the colonies for those resources.

Opposition to various British measures designed to tax Americans formed in each colony and eventually galvanized into a unified opposition, setting the stage for the formation of what became the United States of America. Americans based their opposition on a very particular understanding of their constitutional relationship to the English king and Parliament. Like England, each colony had its own distinct representative institutions. These assemblies, according to the American Whig understanding, were in the same relation to the king as was Parliament. Their governors were still appointed or approved by him, and there was precedent for the king making direct requests to colonial legislatures for funds. Thus Richard Bland, a prominent member of the Virginia House of Burgesses, pointed out that when Charles II had sought to establish a permanent revenue "for the support of the Government in Virginia, the King did not apply to the English Parliament, but to the General Assembly [of that colony]." From this perspective, the executive of the empire was responsible to each legislature within the imperial domain, but no particular legislature could legislate for the others. Indeed, if one were to try, Thomas Jefferson contended, the king would be obliged to use his veto to oppose such a measure: "Let no act be passed by any one legislature which may infringe on the rights and liberties of another."

According to Americans, the rights of Englishmen included the right to be represented in a legislature capable of representing their interests. For Englishmen, however, the king had to remain under the strict control of Parliament; by this time even the monarchy would not broach the idea of an independent royal jurisdiction in the colonies. By 1774 the conflict with America had become violent, and by 1776, reconciliation was unworkable. Having been commissioned the previous month to prepare a statement declaring the reasons for independence, Jefferson's Declaration of Independence was accepted with moderate revisions by Congress on 4 July 1776.

Prior to the congressional vote for independence, each state had issued its own formal instructions to delegates, which amounted to separate and distinct declarations of each colony. Congress's Declaration recognized something of the grievances of each and was thus a recognition of the united character of their opposition, but also the separate and distinct corporate existences of what were now explicitly called "states."

from confederation to federation

In their opposition, the colonies put into practice the theory they had used to describe the constitution of the empire. Internal affairs were governed by each colony separately, but external defense was to be coordinated from the Confederation Congress in command of the Continental Army. The relationship was formalized in the Articles of Confederation ratified on 1 March 1781.

The Articles empowered Congress to deal with foreign nations, make war and peace, negotiate disputes arising among the states, maintain an army and a navy, and regulate post offices and mail delivery across the United States. These were not inconsiderable powers, but they were made difficult to implement properly because of Congress's inability to raise an independent source of revenue.

Just as the colonies had distrusted the distant authority of Parliament to raise taxes from them, so they remained leery of even Congress's authority to collect excises and tariffs. Consequently the Articles required the unanimous support of all the states to pass legislation for levying a tax, and this proved ultimately unworkable. It was also clear that something had to be done about the power of the states to impede trade across their borders.

In a few instances states were engaging in their own foreign relations, imposing tariffs on the productions of other states, and interfering with the powers that supposedly had been delegated to Congress. Issues of paper money finance were also a major concern. Each colony had issued its own currency that competed with the continental issues, and although these did fare better because of the states' taxing powers, it was clear that some states were less responsible in the discharge of their debts than others. As paper money depreciated in value over the course of the Revolution, contracts of all sorts, public and private, were imperiled. To address these concerns, a special Constitutional Convention was called by certain congressional leaders to meet in Philadelphia to propose revisions of the Articles that would provide the national government with effective powers to enforce its constitutionally delegated powers. The convention was composed of representatives appointed by the states and began business in May 1787. It did not complete its task until September. The result was far more than a revision—it was in fact an entirely new government.

During the Constitutional Convention, issues of how the state governments would be represented in Congress quickly came to the fore of political debate. Two plans were presented: The Virginia Plan called for a more centralized power, with the ability to override state laws and a legislature based on proportional popular representation. The New Jersey Plan gave Congress certain powers of taxation, but representation was to be equal among the states. In the end a compromise was reached whereby the larger and smaller states agreed to equal representation in the upper house, or Senate, and popular proportional representation in the lower house, or House of Representatives.

Other provisions were passed to define the powers of the legislative branch (Senate and House), the executive branch (the presidency), and the judicial branch (the Supreme Court). The end result was a government of limited delegated authority, with powers assigned to the national government for matters of foreign relations and relations among the states, and other powers being retained by the states or the people of the states. Those powers were considerable.

state powers retained

Religion. Before the adoption of the Fourteenth Amendment, in 1868, the First Amendment to the Constitution, only prohibited Congress from passing laws respecting the establishment of religious institutions and practices. Although most states recognized the freedom of worship and belief, many still retained some official relations with particular faiths. In Massachusetts, for example, the state imposed a tax on all residents for the support of the Congregational Church until 1811, unless one could show membership in some other incorporated religious body. New Hampshire would require public support of some religious institutions until after the Civil War. Other states, such as Pennsylvania and Tennessee, required a belief in one God and a future state of rewards and punishments to qualify for office. Tennessee, and a few other states also prohibited members of the clergy from holding public office. Maryland pronounced atheists ineligible to serve on juries. Virginia, on the other hand, in a law written by Jefferson and guided through the legislature by Madison, secured a more thorough separation of church and state government through the passage of the Bill for Religious Freedom in 1786, well before the creation of the federal constitution. New York's first constitution created a complete separation of church and state, and full religious freedom for its citizens. However, the document also required that all aliens renounce allegiance to any foreign "potentates," a provision that seemed to discriminate against Catholics. There is no indication, however, that this provision was ever enforced.

Suffrage and office holding. States were also possessed of wide powers to regulate the right to vote and office holding. About half of the original states, as well as Vermont and Tennessee, allowed free blacks to vote on the same basis as whites. After 1800, however, no new state except Maine granted blacks suffrage until the Civil War era. After 1821 blacks in New York had to meet property requirement to vote that was no longer applied to whites. By 1830 blacks had completely lost the right to vote in New Jersey and Maryland. In the next decade, Jacksonian democracy would lead to black disfranchisement in Pennsylvania, Tennessee, and North Carolina. New Jersey allowed women to vote in its first constitution, but eliminated this right before 1812. Most of the states initially has some property requirements for voting, but by 1830 almost none did.

The states also had different requirements for office holding. Many of the states required officeholders to possess a set amount of property, and some, like New York, had a sliding scale, with members of lower house of the state legislature required to own less property than state senators or the governor. Eleven of the first thirteen states had some form of religious test for office holding. The New England states limited the privilege to Protestants, while the middle and southern states limited it to Christians. Delaware, in a unique provision, allowed only Trinitarians to hold public office. Most states abandoned these restrictions in the early part of the nineteenth century, although North Carolina and Maryland retained them into the 1820s.

The states experimented with different rules for office holding and different terms of office. Some preferred annual elections to the state legislature, while others had two year terms for the lower house and much longer terms for the state senates. Some governors had a veto power, others did not. While the founding generation tended to believe in rotation in office, most state constitutions did not have term limits.

Education. State governments also retained the power to legislate for the provision of basic public goods. Education was often assigned to localities—to cities and counties. A public school system was especially well developed in the New England states. New York City experienced considerable controversy during the 1840s over the integration of Catholic and Protestant students, and in 1842 the New York State Legislature took control away from the private Protestant Public Schools Society and established a Board of Education to govern the city's common schools.

Internal improvements. Roads and canals for the improvement of farming and commerce were a major focus of state governments. Although many were in fact built by private businesses, state funding was not uncommon; between 1817 and 1844 some four thousand miles of canals were constructed. Among the most notable was that undertaken by New York, the Erie Canal project under the direction of DeWitt Clinton in the 1820s.

Direct taxation. To go along with such internal projects, and for the funding of basic government expenditures, states possessed (and still retain) broad powers of direct taxation (e.g., property and income taxes). These could vary in form from state to state, but the chief tax was a property tax. Those who assessed the tax were appointed by local communities under general laws of the state.

Incorporation. Somewhat more controversial was the power to incorporate businesses. Articles of incorporation usually provided specific protection or limited liability to the owners of corporate shares in a particular enterprise. This was to encourage the development or performance of a specific area of business. Among the most controversial were banks. From 1791 to 1816 the total number of such institutions grew from 6 to 246. Each state regulated its banking system in its own way. Some prohibited branch banking, believing that capital should remain for local uses. Often banks were required to invest a certain portion in state or municipal bonds, and still others established various forms of insured deposits. By the 1840s a number of states had accepted the idea of a "general law of incorporation," allowing fairly easy entry into the business of banking. Although the charge of wildcat banking was overblown, some institutions were run on very shaky foundations, especially in remote areas where branches were prohibited and banknotes were difficult to redeem.

tensions of a partly national and partly federal system

Such sizable powers were in fact merely a continuation of the basic idea that differing communities ought to be allowed to govern themselves according to their own lights. Representation of the people was a principle of the Revolution, but the people were not the same from state to state. Rather than surrendering all authority to a single unified government, Americans chose to retain the most immediate powers of private and public regulation closer to home.

So where was the balance of power between the states and the national government? Was the United States primarily of a national or a federal character?

A national government derives its powers directly from the sovereignty of the whole people. A federal government takes its authority from the corporate powers of the states. As Madison famously observed in essay number 39 of the Federalist Papers, a series published in New York collaboratively with John Jay and Alexander Hamilton between 1787 and 1788, the new government was "a composite of both." This ambiguity was partly intentional and partly not. To some degree the authors of the Constitution wanted the state governments and the national government to check each other to ensure that neither would overstep their "constitutional" bounds. What was perhaps unintentional was the ambiguity that would become apparent when trying to interpret the document. Was the Constitution a compact among the peoples of the states, or was it fundamentally based on the people as a whole? Could the states secede if they believed the compact had been violated, or would the supremacy clause of the Constitution uphold all federal laws in all circumstances? And who would decide such questions? The federal judiciary? Each separate branch of the federal government? The states themselves?

The issue of slavery was mostly left to the states in the early national period. Some states, including Massachusetts, Vermont, and Ohio, prohibited slavery in their first Constitutions. Other Northern states tried to balance claims of liberty against claims of property, by the adoption of gradual emancipation laws and by encouraging private manumission. By 1830 slavery had all but disappeared in the North, where fewer than 3,000 slaves, mostly in New Jersey, could be found. Southern states did not take any steps to end slavery in the revolutionary period, but most allowed private manumission in the years immediately following the War. Support for such laws waned after 1800 and by 1830 Southern states were far more concerned with suppressing slave rebellions and controlling their free black population, than with ending human bondage in their midst.

Slavery also raised political issues at the national level, which impacted on state governments. The Northwest Ordinance (1787) prohibited slavery in the territories north of the Ohio river, but implied slavery would be permitted south of the river. Congress under the new constitution subsequently allowed slavery in those territories and after the purchase of Louisiana in 1803, did nothing to discourage slavery in the West. As the morality of slavery came into question in the North, Southern leaders began to aggressively defend the institution. This came to a head in 1819 when Missouri sought to enter the Union as a slave state. Northerners had never opposed the admission of a slave state before, but Missouri was north of the Ohio River, and northerners argued it should be free under the Northwest Ordinance. Southerners insisted that the people of Missouri should decide the issue for themselves. Two years of stalemate finally led to the Missouri Compromise in 1820, which brought Missouri in as a slave state and broke Maine off from Massachusetts to create a new free state. Under the Compromise Congress banned slavery in the territories north and west of Missouri. This Compromise delayed a cataclysmic crisis over slavery in the territories, but did not solve the problem.

For states the Missouri debates raised the issue of whether Congress could set preconditions for admission to the Union and enforce those conditions after statehood. Some northerners had wanted Missouri to guarantee the rights of free blacks in the state or adopted a gradual emancipation program before entering the Union. Most political leaders agreed, however, that once a state entered the Union it could not be bound by any preconditions set by Congress. This issue emerged in Illinois between 1822 and 1823 when proslavery forces tried to amend the state constitution to allow slavery. The proposal for a state convention failed, and thus there was no opportunity to consider whether the Northwest Ordinance, or any other federal law for the governance of a territory could limit the actions of a state after it entered the Union. But, the issue remained hovering over the debates over new states in the next three decades. The issues over slavery would eventually be resolved by the Civil War, the Emancipation Proclamation (1863), and the Thirteenth Amendment (1865).

The controversies over secession and slavery would compel yet another examination into the tremendous local powers of states to define the rights of citizens. How much difference could be tolerated between states on basic questions of right and wrong within the same federal union? By the time of the conclusion of the Civil War, it would become obvious to some national leaders that a further revision of what states could do with respect to the deprivation of civil rights was in order. It was that sentiment that formed the basis for the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution.

That said, the states continue as the primary corporate entity for the resolution of domestic matters in law, both civil and criminal. They are also the primary distributor of funds, whether raised within their own jurisdictions or from Congress, and are the primary arena in which individual rights to life, liberty, and property are given legal form. Each state, having its own written constitution of specified and separate powers, was thought to afford Americans a double security for the rule of law both nationally and domestically—both at the federal and state levels.

bibliography

Adams, Willi Paul Adams. The First American Constitutions: Republican Ideology and the Making of State Constitutions in the Revolutionary Era. Chapel Hill: University of North Carolina Press, 1980.

Banning, Lance. The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic. Ithaca, N.Y.: Cornell University Press, 1995.

Border, Morton. Jews, Turks, and Infidels. Chapel Hill: University of North Carolina Press, 1984.

Bryce, James. The American Commonwealth. Vol. 1: The National Government; The State Governments. Indianapolis, Ind.: Liberty Fund, 1995.

Greene, Jack P. Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607–1788. Athens: University of Georgia Press, 1986.

Greene, Jack P., ed. Colonies to Nation, 1763–1789: A Documentary History of the American Revolution. New York: Norton, 1975.

Klebaner, Benjamin J. Commercial Banking in the United States: A History. Hinsdale, Ill.: Dryden Press, 1974.

Kruman, Marc W. Between Authority and Liberty: State Constitution Making in Revolutionary America. Chapel Hill: University of North Carolina Press, 1997.

Lutz, Donald S., ed. Colonial Origins of the American Constitution: A Documentary History. Indianapolis, Ind.: Liberty Fund, 1998.

Niven, John. John C. Calhoun and the Price of Union: A Biography. Baton Rouge: Louisiana State University Press, 1988.

Onuf, Peter S. The Origins of the Federal Republic: Jurisdictional Controversies in the United States, 1775–1787. Philadelphia: University of Pennsylvania Press, 1983.

Schweikart, Larry. The Entrepreneurial Adventure: A History of Business in the United States. Fort Worth, Tex.: Harcourt College Publishers, 2000.

Hans Eicholz

Paul Finkelman

Government: State

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