Constitutional History, 1848–1861

Author:Don E. Fehrenbacher

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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 the

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Pacific 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...

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