4.2.2 Mountain South (1831-1861): Jacksonian Democracy and the Law

  • After Andrew Jackson and his supporters came to power in the late 1820s, they promoted many innovative reforms designed to give workers and small farmers greater economic and political power.  Such reforms included elimination of the property ownership requirements for voting that remained on the books of many states; popular election of judges; elimination of laws allowing imprisonment for debt; homestead exemptions; married women’s property acts, giving married women the right to control property they brought to the marriage (under the common law such property passed to the husband at marriage); and reining in banks, which Jacksonians viewed as having an incurable thirst for monopoly and power. 
  • Inspired by the success of the Erie Canal (completed in 1825), most states also enthusiastically supported and subsidized construction of canal and railroad networks in the 1830s.   After the severe depression of 1837-40, which bankrupted many canal and railroad companies and left many states perilously deep in debt, they took a more jaundiced view of internal improvements.  Many eastern and Midwestern states enacted severe constitutional limits on support of public improvements and on debt levels (§§ ____).  Mountain South states enacted new constitutions in the 1830s and 1840s, and the differences between pre- and post-depression constitutions and laws provide a striking illustration of these social changes: 

Jacksonian Constitutions and Laws





Year of new constitution




N/A (retained original 1820 constitution)


1834:  Extended to all white males (taken away from free blacks, who previously had been allowed to vote)

1836:  All white males

1850: All white males

All white males

Election of judges

1834:  Judges elected by legislature

1853 (amendment):  Judges popularly elected

1836:  Judges elected by legislature

1848 (amendment):  Circuit judges popularly elected

1850: Judges popularly elected


1851 (amendment):  Judges popularly elected

Government role in subsidizing railroads and other internal improvements

1834:  State must encourage internal improvements

1840s:  limited state and municipal aid for railroad between Louisville and Lexington

1850-1865:  extensive local aid for construction of railroads


1834:  State must encourage internal improvements

provides matching grant funds for some railroads

1852:  legislature creates program of state loans to railroads

1850s:  extensive local aid for construction of railroads


1850: State credit shall not be given to individuals or corporations

1850: State may not incur debt exceeding $500,000 unless legislature makes provisions to discharge debt within 30 years 1850s:  heavy state and local railroad subsidies and debt

1859:  constitutional limit on total state debt

1860-61:  laws limiting amount of debt municipalities may incur

1860-75:  extensive local aid to railroads; many municipalities incur heavy debt

1859 (amendment):  State may not incur total debt exceeding $30 million

Imprisonment for debt

1834:  No imprisonment of debtor who gives up property to creditors, unless debtor has acted fraudulently

1836:  No imprisonment of debtor who gives up property to creditors, unless debtor has acted fraudulently

1850: No imprisonment of debtor who gives up property to creditors, unless debtor has acted fraudulently


Regulation of banks


1836: Legislature may incorporate one state bank and one agricultural bank but no other banks

1846 (amendment):  No banks shall be established in state


1854 (amendment) – Legislature may create no more than 10 banks with total capital of no more than $20 million; banks must redeem notes in specie


Homestead exemptions





Married women’s property acts






Legal instrumentalism:  mill dams and municipal subsidies

Harding v. Goodlett – Tennessee, 1832 (11 Tenn. 41); Nichol v. Town of Nashville – Tennessee, 1848 (28 Tenn. 252); Slack v. Maysville & Louisville Railroad Co. – Kentucky, 1852 (13 B. Monroe 1)

  • Mill dam laws, which allowed water mill owners to flood upstream lands when they built dams necessary to generate power, were one of the earliest forms of state support for internal improvements.   The laws troubled many judges because they seemed to benefit mill owners unfairly at the expense of upstream landowners.  Many legislatures also authorized mill owners to condemn land for their own use – a power normally reserved for “public” purposes. 
  • Mountain South states were untroubled by such issues.  In Harding, Tennessee’s supreme court confirmed that grain mills served an essential public purpose, though it indicated the rule did not extend to sawmills and paper mills.   
  • Concerns about government support for internal improvements became more pronounced when railroad got underway in the mountain South.  Many states and municipalities were eager to provide subsidies:  having a railroad often meant the difference between economic success and stagnation.  But they were hampered by the fact that many projects were unsuccessful, particularly in the wake of severe depressions in 1837-40 and 1857-58, and left their municipal backers with large losses that taxpayers had to bear. 
  • As a result, courts in some states, particularly in the upper Midwest, balked at allowing municipal subsidies for what they viewed as largely private enterprises (see § ___).  But in cases such as Nichol, mountain South courts uniformly concluded that railroads were vital to the public interest and could be subsidized.  The same was true in Slack, notwithstanding a vigorous dissent from Justice __ Hise, who argued that Kentucky’s new 1850 constitution prohibited municipal as well as state subsidies.  

File:George Caleb Bingham - The County Election.jpg
George Caleb Bingham, "The County Election" (1852) - courtesy Wikimedia Commons

File:Bridge over the Cumberland River on the Louisville and Nashville R. R., by Barnard, George N., 1819-1902.jpg
Louisville & Nashville Railroad bridge over the Cumberland River - courtesy New York Public LIbrary

File:Memphis Tennessee 1850s.jpg
Memphis, Tennessee waterfront (1854) - courtesy New York Public Library

“It would seem to be an incontrovertible truth that a … town is deeply interested in the making of any road, or other means of transportation and travel, whereby the facilities of its commerce are increased; and if it be so interested, why shall it not become a corporate purpose to have them made?  It would really seem almost useless to argue [the contrary].” – Justice William Turley, in Nichol

“It is not just or liberal to impose the burden of a large debt upon our posterity, incurred to promote the interests of a railroad company.  It is, in my opinion, the wisest policy both for individuals and for governments to improve as they are able, to pay as they go, and to avoid the curse and all the annoying, hampering, and protracted burdens incident to a galling indebtedness.  The political evils proceeding from public debts, numerous and obvious as they are, should superinduce a determination, if possible, to avoid their creation.”  - Chief Justice Elijah Hise (dissenting), in Slack