Today’s guest post comes from Jordan Fansler, who received his Ph.D. from the University of New Hampshire at Durham in May 2015. The following is based on his dissertation, “A Serious and Jealous Eye: Federal Union in New England, 1775 – 1821.”
States’ rights looms large in discussions of both historical and contemporary American politics and its federal union. For good reason, the ante-bellum states’ rights movement of the South is often the first to come to mind, but such a narrow focus does not do justice to the topic as a dynamic historical phenomenon, nor does it provide adequate context for the more modern manifestations of states’ rights movements. In the early republic, New Englanders promoted their own brand of states’ rights, to protect a type of near-sovereignty they attributed to their legislatures, as the best way to promote their interests and shield individuals from distant oppression.
New Englanders’ states’ rights movement was a function of their concept of union, or empire before that, which in turn was informed by a mix of experience, tradition, and circumstance. New Englanders had gotten used to themselves as a group apart for at least the previous century. Geography and rival colonial powers saw to that, thanks to New Amsterdam and New France in the seventeenth century, as well as the general homogeneity of the region in ethnicity and religion of its colonists. Benjamin Franklin’s famous “Join or Die” illustration depicts New England (N.E.) as a single unit alongside other colonies depicted individually. The British Ministry can be said to have recognized New England as an entity, and the proverbial head of the revolutionary snake, when it looked to cut it off entirely at the Hudson River in 1777, rather than the parallel Connecticut River, which runs through the heart of New England.
The sense of distinction manifested itself in a number of autonomous acts at the state and regional level. The 1745 siege of Louisbourg, a French fortress contemporaries considered impregnable, was a largely colonial affair which New Englanders considered an excellent show of their abilities. Similarly, the famous attack on Ticonderoga was authorized by the Massachusetts General Court, made up of New England militia led by Benedict Arnold, with an independent force of Vermont’s Green Mountain Boys led by Ethan Allen, to capture guns and prevent the strategic fort from serving as a staging point for raids on New England’s backcountry. Beginning in December 1776 and continuing intermittently throughout the war, the New England states met in an informal association known as the Committee of Eastern states and other similar names. Cut off from the advice of Congress by the occupation of New York, threatened militarily, and beset by fiscal woes, the New England states met without consulting Congress and took up issues from price controls, to Rhode Island’s occupation, to improving post roads to facilitate communication. As they arguably took up such continental topics as defense strategy and economic regulation, the extra-legal meetings were enough to catch the “serious and jealous eye” of the Congress. Congress allowed the meetings to continue, and in doing so reserved the right to pass judgement on subsequent meetings. New Englanders in Congress argued they were well within their rights to collectively discuss matters of local importance if consulting Congress were impractical, just as counties in a state might improve a road without threatening the superiority of the state in such matters.
These acts were expressions of the blend of self-determination and self-interest that characterized the near-sovereignty New Englanders envisioned for their colonial-turned-state legislatures. The eventual states exercised many of the powers key to establishing sovereignty, such as administering justice and raising taxes. The burden of directing their defense was primarily shouldered by the union, rather than the states, though the states did occasionally exercise that power as noted above. However, diplomatic powers, the ability to treat with foreign nations as equals and decide matters of war, peace, and alliance, what Eliga Gould has recently described as “treaty worthiness,” were exclusively the domain of the Congresses rather than the states.
This delineation of powers came about through practical experience, but it was promoted during the constitutional crisis preceding the Revolution as the surest way to avoid abuses of individuals liberties. In 1768, the Massachusetts House of Representatives was arguing against gaining representation in Parliament, as “it will forever be impractical that [American colonies] should be equally represented there,” instead looking for official recognition of the colonial legislatures as the most effective form of representation and protection of rights and interests. As the crisis turned into a revolution and the colonies first began to take up autonomous governments, New Hampshire’s leaders repeatedly emphasized the importance of tax collection, providing jury trials, and the administration of justice as the fundamental powers of good government, balanced with an obligation to “full and equitable representation.” In all these cases, New Englanders acknowledged that the colonial/state governments occupied a distinct place within a federal or imperial system. Given their powers and obligations, the states were arguably the most important features of that system in terms of ensuring the rights of the citizens, and that is why their powers would be jealously guarded in the early Republic, but they were always a part of a greater governmental system, enjoying near- rather than full sovereignty.
New England’s strain of states’ rights shared many aspects common to that of other movements. It was, like the others, a movement that focused on securing the liberties of individual citizens against threats. However, it tended to be more defensive than active, in that it looked to preserve the powers of the states more than to limit the power of the national government. The states were quicker to petition the federal government to amend or repeal unjust laws, than to actively declare them unconstitutional, and therefore did not embrace nullification. It was born out of a distinct regional identity and as such may not have been as easily exported to other newer states as other brands of states’ rights. Its influence waned alongside the region as a whole, in large measure due to the failure of the Hartford Convention of 1814. It may not have had the impact of the Southern version, but New England’s states’ rights movement brings added nuance and contingency to the discussion from a formative period.
 Both James Otis of Massachusetts and Stephen Hopkins of Rhode Island expressed local pride regarding the siege and emphasized its strategic importance to the larger British war effort. James Otis, “The Rights of the British Colonies Asserted and Proved,” 1764; Stephen Hopkins, “The Rights of Colonies Examined,” 1765. Both are reprinted in Pamphlets of the American Revolution, 1750-1776, Vol. 1: 1750-1765, ed. Bernard Bailyn (Cambridge: The Belknap Press of Harvard University Press, 1965).
 Eliga H. Gould, Among the Powers of the Earth: The American Revolution and the Making of a New World Empire, (Cambridge: Harvard University Press, 2012).
 Massachusetts House of Representatives, Circular Letter, 11 February 1768. A transcript is available online at the Avalon Project, Yale Law School.
 Matthew Thornton to Josiah Bartlett and John Langdon, 1 September 1775, The Papers of Josiah Bartlett, Frank C. Meyers, ed., (Hanover: University Press of New England, 1979). General John Sullivan likewise wrote at length of the importance of representation to avoid tyrants and abuse. Sullivan to Meshech Weare, 12 December 1775, Letters and Papers of Major-General John Sullivan, Continental Army, 3 vols. (vols. 13-15 of Collections of the New Hampshire Historical Society), Otis G. Hammond, ed., (Concord, NH: New Hampshire Historical Society, 1930-1939).
 To be sure, there were New Englanders who asked for nullification, not least of the 1807 Embargo, and states, such as Massachusetts, stated the belief that the Embargo was invalid and unconstitutional, but just as often asserted that the remedy was through federal channels and petitions rather than claiming a power of judicial review for the states, as occurred elsewhere. See James M. Banner, Jr, To the Hartford Convention: The Federalists and the Origins of Party Politics in Massachusetts , 1789-1815, (New York: Alfred A. Knopf, 1970)