by Maeve Glass
Abstract
This article offers a legal history of one of America’s earliest campaigns of state legislative resistance: the effort in Massachusetts to protest the national government’s perceived dismantling of an old Atlantic commercial order from 1803 to 1815. To date, scholars have either condemned this protest as a dangerous harbinger of the Civil War or vindicated it as an inevitable and salutary extension of the Founding. This article steers a different course. By focusing on the evolving language of protest and the complex hybrid of ideas and material realities from which this language emerged, this article illuminates how Federalist leaders who were determined to preserve New England’s waning influence in an expanding agricultural nation of slavery created a bespoke rule of state protest, one that elites could deploy without fear of inciting democracy or disunion.
When influential Federalists first sketched out a vision of state protest in 1787 and 1788, they enlisted an old Whig theory of politics that imagined society as an organic composite of the people, whose feelings would naturally flow into the state governments for refinement into virtuous sentiments. Conceived in an eighteenth-century political economy anchored in the Atlantic Ocean, this theory proved no match for the seismic shifts of the 1790s. At a time when a surge of elite land speculation and development brought America’s territorial and class lines into sharper relief, a wave of grassroots political mobilizing insisted on the right of the people to speak directly to power. To stave off this specter of mass politics, Federalist elites embarked on a search for a new rule of state protest. By 1814, this iterative search had coalesced around the idea of the state as a sovereign entity, one whose voice would be activated not by the whim of the people’s feelings, but by the mollifying rules of procedure. In this new order, a state’s speech would encompass not simply virtuous sentiments to be exchanged among a natural aristocracy, but constitutional arguments that could funnel people from the streets to the courts.
This account enriches our understanding of American federalism. Rather than seeing the state and federal governments as fixed entities, it joins recent work that recasts these governments as contested categories. But instead of focusing on the well-mapped political arena, it shows how and why the harvesting of the material world shaped the often haphazard invention of a state. In doing so, it brackets the abstract debate of which federal-state configuration produces the most “good.” Instead, it shows how, amidst a broader project to transform land into waterways and cotton into cloth, Federalist lawyers carefully fashioned a rule of state protest that could keep New England’s merchant ships and cotton mills in motion.