Posted on 01/12/2005 7:08:24 PM PST by jonestown
What States Rights Really Mean
by Thomas E. Woods, Jr.
William J. Watkins, Jr., Reclaiming the American Revolution:
The Kentucky and Virginia Resolutions and Their Legacy (New York: Palgrave Macmillan, 2004).
Ask the typical undergraduate to discuss the ideas advanced in the Virginia and Kentucky Resolutions of 1798 and you may as well be asking for an overview of the Copenhagen interpretation of quantum physics. Yet these nearly forgotten documents fully merit a place among the most important political writings in American history, both in terms of the ideas they put forth and the influence they had on subsequent generations of American political thinkers. That's why William Watkins' new book is something to celebrate.
The Resolutions in effect posed and sought to answer a series of fundamental questions. How is the central government to be restrained? Are frequent elections and internal checks and balances sufficient, or does the limitation of federal power require still more institutional safeguards? Which institution, if any, possesses the definitive word on constitutional disputes between the federal government and the states? To the suggestion that the Supreme Court was the ultimate arbiter, the drafters of these documents had yet another question: how can the federal courts function as impartial umpires between the federal government and the states when they themselves are part of the federal government?
Watkins skillfully guides the reader through the context within which the Virginia and Kentucky Resolutions were drafted. The Alien and Sedition Acts of 1798, passed during the Quasi War with France, alarmed Thomas Jefferson, James Madison, and the Republican Party in general. The alien legislation, which authorized the president to deport resident aliens who had "treasonable" leanings, was a source of concern to Jefferson and other Republicans; Jefferson believed the legislation was aimed at Albert Gallatin, the important Pennsylvania Republican, who had been born in Geneva. (He later became Jefferson's own treasury secretary.)
But it was the prohibition of seditious libel that concerned them most. For Jefferson, it wasn't only that this prohibition would be enforced in a partisan way that made it objectionable – though of course it was, with Republican newspapers and spokesmen targeted for harassment, fines, and even jail time. (Watkins refers to correspondence between Jefferson and Madison at the time in which they express concern that someone might be tampering with their mail.) And it wasn't that seditious libel could be arbitrarily or loosely defined – although, again, in practice it was: one poor soul, who expressed the fond wish that the presidential saluting cannon would "hit [President John] Adams in the ass," was fined $100. The primary issue was the acts' dubious constitutionality. Jefferson based part of his objection on their violation of the First Amendment, but noted that they violated the Tenth Amendment as well. Nowhere had the states delegated any authority to the federal government to pass legislation pertaining to the freedom of speech or press. In doing so, then, the federal government had encroached on a state prerogative. For Jefferson, who spoke of binding men by the chains of the Constitution, immediate action was necessary lest such federal usurpations begin to multiply.
Was there a constitutional remedy – that is, a solution short of the extreme measures of secession or violent revolution? As far as Jefferson was concerned, there had to be. And that constitutional remedy, as so often in Jefferson's political philosophy, involved the states. Given that the states were the constituent parts of the Union, and had enjoyed an independent existence long before the Constitution had come into effect, they had to have some measure of protection against the federal government that they themselves had created. Certainly the federal government, which was merely the agent of the states, could not be permitted to have the exclusive authority to make authoritative judgments about the Constitution, since the obvious long-term consequence would be the eventual concentration of power in the federal government as it consistently handed down rulings in favor of itself. The states had to be able to make their own interpretations of the Constitution, to which they themselves had acceded, count for something. Even the centralizing Alexander Hamilton had envisioned a role for the states in restraining the federal government, arguing in Federalist #28 that "the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority."
As far as Jefferson could see, the only way in which a state could both remain in the Union and retain its liberties in the face of an unconstitutional act on the part of the federal government was for the state to declare that by virtue of its being unconstitutional, the federal action was null and void and would not be enforced within the borders of that state. (He and others did indeed entertain and reply to the various objections to such an idea.)
An anonymous Jefferson (who was vice president at the time) penned what became known as the Kentucky Resolutions of 1798, which spelled out the objectionable aspects of the Alien and Sedition Acts as well as the states' rightful response: nullification. Madison penned similar resolutions that were approved by the Virginia legislature. Although Virginia and Kentucky found little support in other states for these ideas in 1798, with the passage of time all sections of the country would appeal at one time or another to what became known as the "Principles of '98."
You may have noticed that these ideas are rather out of fashion today on both left and right. Watkins, however, identifies these ideas as absolutely fundamental to American liberty and as legitimate means, faithful to the spirit of the Constitution, of preventing the expansion of the federal government.
Watkins could have strengthened still further his case that the Principles of '98 merely vindicated older and settled doctrines about the nature of the federal Union by referring to some of the recent scholarship of Kevin Gutzman, a professor of history at Western Connecticut State University.
Gutzman has shown, contrary to the contentions of Straussians, neoconservatives, and left-liberals alike, that nullification was not simply a doctrine that Jefferson and Madison contrived out of nowhere as an ad hoc response to the threat to civil liberties posed by the Alien and Sedition Acts. To the contrary, the line of thought that culminated in the Resolutions of 1798 can be traced all the way back to the Virginia ratifying convention, where its central principles were laid out by prominent Virginia Federalists. (That's right: Virginia Federalists set forth these doctrines.)
The context was as follows. At the Virginia ratifying convention, Patrick Henry expressed his fear that the "necessary and proper" clause of the Constitution (which said that the federal government would have all powers "necessary and proper" to carry into effect the powers granted in Article I, Section 8) would inevitably be interpreted by the federal government as a boundless grant of power, transforming the limited government that supporters of the Constitution promised into an unlimited government that would menace the people's liberties. He was likewise concerned about the "general welfare" clause, since government could justify practically any action it might take by some strained reference to the general welfare.
Edmund Randolph, the leading Federalist speaker at the convention, argued that Henry's fears were unfounded. Those phrases could not have the expansive meaning that Henry attached to them because, Randolph explained, the only powers possessed by the federal government would be those expressly conceded to it by the states. "All rights are therein declared to be completely vested in the people, unless expressly given away," he said. "Can there be a more pointed or positive reservation?"
Randolph belonged to a committee of five men whose task it was to draft the ratification instrument – that is, the statement by which Virginia would officially ratify the Constitution. George Nicholas, another member of the committee, told the convention that if Virginia assented to the Constitution it would do so on the basis of the clear and manifest meaning of that document. If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification and intent, to be, what the words of the contract plainly and obviously denote; that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it, whensoever any such imposition shall be attempted – I ask whether in this case, these conditions on which he assented to it, would not be binding on the other twelve? In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them.
By the slimmest of margins the Virginia convention went on to ratify the Constitution, but on the terms of their instrument of ratification, whose exegesis they had heard from Randolph and Nicholas. They had announced to the people of the other states how they understood the document, and that Virginia should be exonerated from it should the new government stray from this understanding. They had acceded to a compact establishing a federal government that possessed only those powers expressly granted to it and no more.
Already in 1790 Virginia was expressing its displeasure with the direction of the federal government. Alexander Hamilton had proposed federal assumption of the state debts, in order to bind the wealthy more closely to the success of the new federal government. (In other words, the wealthy would have a vested interest in the success of the new government since if it failed, their bonds would be worthless.) Patrick Henry introduced into the Virginia state legislature a resolution, approved by both houses, calling Hamilton's plan "repugnant to the Constitution…as it goes to the exercise of a power not expressly granted to the General Government." As the decade progressed, John Taylor of Caroline kept up this posture of vigilance vis-à-vis the federal government. What is more, Taylor argued that the state legislatures had the authority and indeed the duty to enforce the original understanding of the Constitution, and to prevent the federal government from usurping the reserved powers of the states. As Gutzman puts it, Taylor envisioned state legislatures acting "as Americans have now come to think it is normal for the United States Supreme Court to act." Thus when Jefferson and Madison penned the Virginia and Kentucky Resolutions of 1798, they were not introducing any radically new doctrine but merely drawing out the logical conclusions of a vigorous intellectual tradition traceable to the Virginia ratifying convention.
And it is that intellectual tradition that this book describes and vindicates so effectively. Reclaiming the American Revolution is a relatively short book, but it contains scarcely a wasted word. In some ways, it is a miniature American history in itself, as Watkins takes us on a tour of the nation's past through the lens of the Resolutions. In the manner of James J. Kilpatrick's unfortunately out-of-print classic, The Sovereign States, Watkins provides example after example of acts of state resistance to the federal government, recreating for us a time when the states were genuine actors in a constitutional drama. He likewise sketches the process by which political consolidation, the evil that the Jeffersonians sought above all else to avoid, triumphed over the Principles of '98 in the decades following Reconstruction and during the twentieth century in particular.
William Watkins has won the praise and admiration of a wide array of very fine scholars – Reclaiming the American Revolution carries some very high-powered academic endorsements – while nevertheless making clear his own sympathy for a political tradition that could hardly be less fashionable in academia (or, for that matter, in modern politics). It will take a lot more than good scholarly work to reverse the century and a half of political centralization through which the United States has passed, but in the meantime we can use excellent books like this one as a moral rebuke to those who, in defiance of American law and tradition, aid and abet the aggrandizement of the central state.
Professor Thomas E. Woods, Jr. holds a bachelor's degree in history from Harvard and his Ph.D. from Columbia. He is the author of The Church Confronts Modernity (Columbia) and the forthcoming The Church and the Market: A Catholic Defense of the Free Economy (Lexington). The Politically Incorrect Guide to American History, a New York Times bestseller, is his most recent book.
Government in marriage is more than just adults living together. Marriage law, and by conection divorce law, has always been about children and providing for inheritance and support for the family.
The private system of marriage is completly inadequate to deal with property and inheritance rights. Governemnt came IN to recording marriages because the private system is too suseptible to fraud. Look at california's paternity fraud problem and multiply that a thousand fold with no minimum recording.
Thanks for the ping and posting the article. As a staunch Federalist I find that it's amazing how few truly understand a concept which is at the core of what has defined America, and around which so many of our struggles in the past (Civil War and Civil Rights movement just to name the biggies) revolve.
Jefferson's side of the argument is not nearly as widely read and studied in schools as The Federalist Papers (Which deserve full consideration as well).
Jefferson was not as adept at using the media of his day (Newspapers) as was his adversaries. Although I fall on the other side of the fence, I still feel that Jefferson's views deserved to have been given the full attention they deserved instead of the demonization treatment they got.
This statement is true.
The reason why this statement is true is because everyone assumes that the "commerce clause," for example, gives the federal Congress to set a minimum wage, for example
But the powers of Congress still cannot violate the Bill of Rights.
The minimum wage law is unconstitutional because it violates Amendment V: "nor shall private property be taken for public use without just compensation."
Let's hold the Congress critters to the covenants of the Bill of Rights.
No one here is arguing against the point that one of goverments functions is enforcing contracts on childrens rights, property rights or inheritance.
I see no need for a Constitutional Amendment in those areas. Why do you?
BUMP THAT COMMENT AND THIS MOST EXCELLENT ARTICLE!
What Woods, a founding member of the Southern nationalist League of the South doesn't say is that Jefferson's and Madison's views changed over time. Some of the things that were done in the late 1790s, from Adams's Alien and Sedition Acts to Jefferson's call for nullification make poor precedents for later Americans: in those days the two parties were convinced that their opponents were out to establish a tyranny, so that all manner of countermeasures were permissable. Confronted with serious party divisions for the first time, the founders interpreted them in terms of the violent enmities of the Revolutionary years, and didn't always come up with what later generations considered to be the best solutions for running a two-party system.
You previously mentioned:
"--- James Madison fought Thomas Jefferson over that very concept a long time ago. The Federalists won. The papers (both sides of the argument) make for an awesome, mind opening read.
Our Constitution doesn't need to be amended, -- it just needs to be honored and supported by all of our officials & politicians, fed/state/local.
24 jones
What Woods, a founding member of the Southern nationalist League of the South doesn't say is that Jefferson's and Madison's views changed over time.
Or; -- perhaps their views were corrupted by party politics.
Some of the things that were done in the late 1790s, from Adams's Alien and Sedition Acts to Jefferson's call for nullification make poor precedents for later Americans:
Why is the concept of nullification a "poor precedent"? It could serve well to check & balance our current rush to socialism, no?
in those days the two parties were convinced that their opponents were out to establish a tyranny, so that all manner of countermeasures were permissable. Confronted with serious party divisions for the first time, the founders interpreted them in terms of the violent enmities of the Revolutionary years, and didn't always come up with what later generations considered to be the best solutions for running a two-party system.
I'd say our present day "best solutions" are losing us our Republic, wouldn't you?
Had the Anti-Federalists, nullifiers, or secessionists gotten their way, after some years we might look more like one of those unfortunate "failed states" in the poorer parts of the earth. That's something Woods and his fellow Rockwellites don't consider.
I'd agree that government can be a great enemy of human freedom. But I'd think more of such critics if they addressed the problems of countries that didn't succeed in establishing or maintaining the basics of government. They're not Utopias.
"Perhaps they didn't disagree on the concept that ALL levels of government, Fed/State/local must support the US Constitution?"
"The minimum wage law is unconstitutional because it violates Amendment V: "nor shall private property be taken for public use without just compensation." "
No. 98—963
JEREMIAH W. (JAY) NIXON, ATTORNEY GENERAL OF MISSOURI, et al., PETITIONERS v. SHRINK MISSOURI GOVERNMENT PAC et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[January 24, 2000]
Justice Stevens
"I make one simple point. Money is property;"
Where does the money (property) come from to pay requirements of a minimum wage law?
From the business owners, whether sole proprietor, partnership, or stock holder.
What is the reason and result of a minimum wage law?
For the public use.
A minimum wage law can only be constitutional if there is corresponding tax and compensation mechanism built into the law to adhere to the covenant of Amendment V.
Randolph of Virginia explained that the only powers possessed by the federal government would be those expressly conceded to it:
"All rights are therein declared to be completely vested in the people, unless expressly given away," he said. "Can there be a more pointed or positive reservation?"
_____________________________________
Perhaps they [the framers] didn't disagree on the concept that ALL levels of government, Fed/State/local must support the US Constitution?
You're right, they both agreed on that priciple .... to a point. Jefferson believed that the Federal Governments powers were strictly limited by what the people had consented to in the Constitution. He also believed that States ultimately had powers given to it which the citizens had not expressly given to the Federal government via the Constitution and thus maintained a higher level of sovereignty.
Under our system, the people are sovereign, not the state.
Even using Jefferson's logic however; the problem with the right of nullification is that this is not a case where the States could assume they had a right granted to them not expressly given to the Federal Government.
All individuals have the right to ignore unconstitutional law. Sworn officials [at all levels of gov] have a DUTY to support the Constitution & oppose [nullify] 'laws' that are repugnant to its principles.
The power to determine Constitutionality and nullify legislation based on that was expressly given by the people to the Supreme Court in Article 3, Section 2, Clause 1 of the Constitution.
And if the USSC fails in their duty, other officials, or the people themselves, acting through the State, are able to nullify unjust legislation.
They did just that in the fight to repeal prohibition, -- for a good instance.
Point taken, here is an excellent article covering the the minimum wage argument from a wide perspective -
http://www.acton.org/publicat/randl/article.php?id=78
It does, at least in free societies. That's one real reason for objecting to the secessionists of 1861. They didn't take the peaceful path of non-violent resistance, political organization, or action through the courts, but rushed to build up their own country, state apparatus, and army, at a time when the rights and wrongs of unilateral secession were anything but clear.
I don't doubt that there will be situations when armed revolt is excusable, necessary, and unavoidable. But ideas of unilateral secession tend to make people "politically stupid." They avoid the real political options that they have, and stop working within the system. Would-be seceders tend to see direct, unilateral action as the answer to everything, and pass up the real opportunities for compromise.
And since most countries have grown together and developed common institutions and property, it's virtually impossible for one faction or region to make a clean break on its own without involving violence. All the more so as competing parties within each state or province take up arms in order to be on one side of the frontier, rather than on the other.
Nothing in the nullification concept would lead to secession, unless the feds abused their Constitutional powers to enforce laws that were under dispute in the Courts.
That would certainly be nice if it were true. I'm not qualified to judge the matter, but I can't help being skeptical. Something tells me that Calhoun wouldn't have bowed to a federal court decision if it went against South Carolina. His view would be to put the state government above the federal courts.
Your view -- up to a point -- is what any state could do now: refuse to execute a law or ruling and until the courts decide, so it's not clear what the concept of nullification adds to such resistance. But the problem is, what happens when the courts go against you? If you recall the civil rights battles of the 1950s, the federal government got its way. And that, as many people realized at the time, wasn't an entirely bad thing.
Rightly or wrongly, ideas like nullification or interposition have come to be seen as half-way houses to secession, and have been condemned as such. In the Federalist Papers, Madison noted that in small communities one faction or other often dominates political life and imposes itself on other groups, even to the point of establishing a tyranny. In a larger "extended republic" local elites have to compromise, and cooperate, and surrender a little of their power.
In plenty of countries around the world (in Latin America and Africa, for example) tribes or factions got the kind of veto power that Calhoun wanted for his state and region. The results weren't pretty or always favorable to the cause of liberty. Madison forsaw this, and that may be a big reason why he supported Jackson and the Union against Calhoun and the nullifiers in the 1830s.
Doubtless, we have plenty of problems without nullification, but it's not the answer. At first sight, we might want vigorous, proud, defiant, self-assertive states battling the federal government at every point, but if we look at things more closely it may look like a bigger problem, rather than a solution. There may be troubles at times, but the fact that the states have grown closer together in a federal union isn't entirely bad thing.
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