The Reconstruction of Federalism: Foreign Submarine Telegraph Cables and American Law, 1868–78

Abstract

In the wake of the Civil War, Americans contested the relationship between the federal government and states. Conflict over federal authority played out in concrete and surprising terms in a controversy that erupted in 1868 surrounding regulation of international telegraphy. The debate, which has remained largely unexamined, centered on whether a state could authorize a foreign company to land a submarine telegraph cable on American shores without Congress’s permission. Scholars have scrutinized consequences of the revision of federalism for individuals’ rights but have devoted less attention to implications for the nation’s international relations and commerce. The regulation of foreign cables, however, proved a key testing ground for the federal government’s efforts to assert sovereignty before both state authorities and other nations during Reconstruction. The episode revealed varied alliances and sources of opposition that emerged amid attempts to project federal power. It also reflected many Americans’ growing expectations of an expanded role for the national government in commerce and the international sphere—a position the federal government realized only haltingly. Intractable problems of federalism contributed to congressional inaction. While undertaking the formidable work of reconstructing the Union, the United States government struggled to delineate the physical boundaries of its authority.