The Principles of ’98 – Abbeville Institute

From the 2003 Abbeville Institute Summer School

This morning we’re talking about the two greatest losers in American history. “Loser’s History” is the only history that needs to be told. With the winners, you know everything about it, even if you don’t care to know it; just turn on the History Channel. My suggestion is to never watch the History Channel if you want to learn something about history. That was a great line by Ralph Raico. Whenever you watch the History Channel, you get the official view of how things were and I think you should avoid that unless there’s some good documentary. They occasionally get things right. Now, we’re going to be talking a lot about Jefferson and Calhoun. I do believe that these two guys, Jefferson and Calhoun, are the best and the most powerful intellectuals that America ever produced, and were it not for their being too interested and involved in actual politics, they would compare with Immanuel Kant, John Locke, David Hume, even G.W.F. Hegel, the great minds of humanity. Unfortunately, they were distraught by practical politics, as happened to a lot of Americans in those times. For a long time, Americans had this inferiority complex against Europe for almost 200 years until the end of the Second World War. Americans accepted Tocqueville’s explanation of themselves for more than a hundred years. Here’s this brilliant Frenchman who comes to the United States, doesn’t speak a single word of English, goes around with a couple of translators, talks to some people, is here to take a look at the prisons more than anything else, goes back, and writes a brilliant book about America. There’s no doubt that Tocqueville’s book is excellent, but that happens to be America for a lot of people for more than a century. Tocqueville defined America. You know in Europe, for the thinkers of the 1800’s, the question was never: “Did he know anything about America?” The question was: “Did he read Tocqueville?” For Americans and Europeans alike, Tocqueville became the official explanation of America throughout the 1800’s, and my contention is that there are better sources and there are a lot of sources and Tocqueville is just one among many.

We will discuss the Jeffersonian political doctrine and something about the Hartford Convention. When I was writing this book on Jefferson, I spent five or six years with the guy, and for some months it was more than twelve hours a day spent in his writings. So, when I was reconstructing his political thought on certain issues like the right of property (which almost a-hundred-and-fifty pages on that) I just wanted to show that he was a pure Lockean in regard to property as a completely natural right, and, because of the fragmentary nature of Jefferson’s reflections on these issues, that was done by inferences and inferential arguments. But when it comes down to Jefferson’s Federalism, certainly one can say that destiny has looked more favourably upon me and us in general, because Thomas Jefferson has left us something absolutely certain and very sound on which to base our arguments – an entire document of almost 3,000 words which contains his complete theory of the Federal bond. This is, of course, the Kentucky Resolutions of 1798. In many ways this is an explosive document and is destined for a prolonged period of time to be regarded within American political history as the starting point of the school of States Rights. Jeffersonian scholars don’t like it at all because it is embarrassing for them. They are keen to create the icon of the Virginian that loved the Union just as much or even more than Abraham Lincoln. Jefferson, a guy who never considered himself an American, but just a Virginian, somehow was the builder of the nation. And so, the major Jefferson biographers tend to pass it off as worthy of no more than a few pages among thousands, a mere note out of tune which occupies a purely marginal role in the work of an otherwise crystal-clear lifetime, to be brushed aside like a bothersome fly that threatens to alight on a tasty morsel. For instance, take Dumas Malone, who wrote the definitive biography on Jefferson. He wrote his first article on Thomas Jefferson in 1926 or 1928 and the last one was in 1982. He wrote six volumes on the life and times of Thomas Jefferson and it’s easily more than 3,000 pages. Guess how many pages are devoted to the Kentucky Resolutions? Out of 3,000 pages, there are six pages on the Resolutions. Six. Malone covers them favourably, but six pages out of 3,000 makes them seem totally unimportant. The fact is that the Resolutions are really the core of Jefferson’s Federal conception and they embody in a nutshell the whole of his Constitutional doctrine. They actually represent Jefferson’s greatest contribution to a Constitution in whose drafting he took no part, since as you all know, he was in Paris, France at the time as an ambassador to Louis VXI. In a certain sense, Jefferson felt that the Federal system could almost boast a priority even over the rights of man. You know that Jefferson is the guy in American history who was the most concerned with the rights of man and the rights of the individual and so on, but at a certain point after 1798, we could even say that the real Federal system boasted priority over the rights of man. This is to say that for Jefferson, the centralized republic, consolidated, one and indivisible, was always and necessarily tyrannical even when it benefited or formally recognized the rights of man, and over time actually what happened is that it replaced the simple natural rights creed of 1776 with a Federal conception of the body politic because he came to recognize that the protective walls of our liberty are our State governments. He wrote as much to French philosopher Antoine Louis Claude Destutt de Tracy in 1811: “the true barriers of our liberty in this country are our state-governments.”[1]

In Jeffersonian terms, political tyranny would be defined as: “The consolidation of power in a single center.” There’s no other definition of tyranny in Jeffersonian thought after 1798. So, the rights of man would certainly remain at the center of his political reflection, but the strategic design to safeguard such rights came to include the reinforcement of the power of the States at the expense of the Federal government. The Alien and Sedition Acts were the two laws that prompted the response from Jefferson and Madison. Jefferson drafted the Kentucky Resolutions and Madison drafted the Virginia Resolutions. In doing this, Jefferson took the first available opportunity on which the Federalists broke the Constitutional pact in order to seriously address the entire problem of Constitutional interpretation – the relations between the Federal government and the States. These laws concerned freedom of expression pretty clearly and for a long time people just thought that what was going on was actually a battle for freedom of expression, not a battle over Constitutional interpretation. But Jefferson wasn’t defending the First Amendment. Jefferson was talking about Constitutional interpretation. The Alien and Sedition Acts were approved in the summer of 1798 and when Jefferson was vice-president and they sparked the definite split between Jefferson himself and the Federalist Party. The law on aliens was a pretty bad law, but it was not applied because in those times you became a citizen through a State, so Federal law could not do anything to you for the status of foreigner. However, the law increased from five to fourteen years the period of residence required for naturalization and post-compulsory registration of all aliens. Aliens were coming into the country and they were joining ranks with the Jeffersonian Democratic-Republican Party immediately and that was something that the Federalists didn’t like. The law also gave the President of the United States the power to decree the expulsion from American soil, without any trial, of any alien citizen, which was considered pretty un-American. The Federalists didn’t have a problem with the immigrants per se, but they hated that these new arrivals were joining the Jeffersonian Party. The law on aliens was quite severe, but as I said, it was not applied at all, plus they were foreigners, so a lot of people didn’t care too much about that.

The law on sedition stated that it was an offense punishable with a fine of up to $5,000 and five years in jail to act in such a way as to prevent the full implementation of the laws of the United States or to intimidate anyone who sought to obtain a Federal office or more generally to participate in any sort of seditious assembly. Now, how do you define that? It clearly violated the First Amendment. Anyone found to be the author or publisher of defamatory material that was offensive against the President or Congress could be punished by a fine of $2,000 and imprisoned for two years and it’s difficult to know how many people were, because the old common law action for libel was still there, but we’re talking about thirty or forty very prominent people who went to jail. The basic result was that the First Amendment, the one that establishes the right of every citizen to absolute and incoercible freedom of manifesting of his own thought, was no longer enforced, superseded by a mere act of Congress in what was clearly an arrogation of power. These laws also clearly overstepped their delegated powers since no article of the Constitution delegated to the Federal government the power to regulate the status of aliens, much less the power to repeal freedom of expression.

The background of these measures was the French scare. There was a French scare in 1798. While it was clear that there should have been a French scare in Germany and all over Europe, it’s not understandable why there was something like that in the United States, but it spread like wildfire through America during the 1790’s. And it was really the fear that the French Revolution would burst its banks and spread beyond its natural borders, but as John Adams said: “There’s no more prospect of seeing a French army here than there is in Heaven.” Just after the passing of the two laws, Jefferson privately reassured John Taylor of Caroline, saying: “a little patience and we shall see the reign of witches pass over,”[2] but this proved not to be the case. and he had little patience afterwards, when his opposition to the measures could not have been more clearcut. A few years later, in 1804, he wrote to Abigail Adams, who was also a fervent Federalist: “I considered & now consider that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.”[3] If you know Jefferson, that’s a pretty powerful image. The Kentucky and Virginia Resolutions were the Jeffersonian and Madisonian answer to that, and in the Kentucky Resolutions Jefferson really for the first time put forward the political and juridical doctrine of the school of States’ Rights, which retained its primacy up until the War for Southern Independence. I call it the War for Southern Independence because I think it was a war for Southern independence. It’s not a civil war because in a civil war, both sides fight to gain control of a given central government and of the same territory, which clearly was not the case. And it’s not The War Between the States because the States as States had no part in the war. There were no armies from the States. They all fought under the army of the Confederacy or the Union. So, it should be called the War for Southern Independence because that was the cause for it. The South wanted to be independent and the U.S. government wouldn’t let them go.

So, when was the beginning of this school of States’ Rights? It was during the ratification of the Constitution, and especially in Virginia, New York, and Rhode Island. New York and Rhode Island were even more specific than Virginia when they ratified the Constitution. They basically said: “The people will just get back their powers whenever they want. We do ratify the Constitution, but it has to be very clear that we can just regain our powers whenever we like.” Antifederalist feeling was extremely strong in Virginia where the Constitution plan was passed by a vote of 89 to 79 in 1788. And most of them were just conned into it. I think there was a clear majority of Antifederalists in Virginia, but they were out maneuvered. The Federalists were definitely the slicker politicians. But at the moment of ratification in the Virginia Convention they added a clause that was intended to provide a clear statement of the meaning of this traumatic act of subscribing to the new plan of government, so we should look at this for the definite birth of the States Rights’ school. They said something like:

“We the delegates of the people of Virginia do declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them” (Daniel Webster later used this same quotation to argue the exact opposite. He was another slick politician.) “whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will. That therefore no right of any denomination can be canceled, abridged, restrained or modified by Congress, the Senate, or House of Representatives…& that among other essential rights the liberty of conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States.”

Isn’t it interesting that they’re talking about liberty of the press and liberty of conscience? So, ten years later Virginia and Kentucky found themselves leading a battle that stemmed precisely from the freedom of speech and ultimately involved the interpretation of the Constitution. Now let’s forget anything about history because although it’s really interesting, I don’t want to dwell to much on that, because otherwise we cannot talk about the theory. Let’s go to the theory. Today a large portion of political and Constitutional theory holds that Federal citizenship is unthinkable without common and uniform safeguards of rights for all citizens. That’s part of what they call Federal citizenship. The States can decide a couple of things, especially if people can have fireworks or not. Contemporary scholars unanimously agree that individual rights have the greater protection under Federal than State power. I don’t know why, but that’s a given you cannot argue about. What they want to say is that there shouldn’t be any disparity of treatment on this very sensitive issue and the equality of citizens before the law cannot be guaranteed but at the Federal level. That’s the juridical thought of these days and the past hundred years. Well, Thomas Jefferson declared exactly the opposite. It was not the Federation, but the States, the buffers against the Federalist cravings to amass the American population into a single political community, that represented the true guarantee of the freedom of the citizens. So, the Kentucky Resolutions are first and foremost a recognition of the irreplaceable role played by the States in safeguarding the Constitutional balance against the risk of consolidation of Federal power. And as we shall see on the First Amendment, Jefferson thought that the States could do something against the First Amendment, but the Federal government could not. He took “Congress shall not” very seriously. It is appropriate to cite the core of the argument set forth in the Resolutions. The first resolve said:

“the several states composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a General Government for special purposes, delegated to that Government certain definite powers, reserving each state to itself, the residuary mass of right to their own self Government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each state acceded as a state, and is an integral party, its co-states forming as to itself, the other party: That the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the constitution, the measure of its powers; but that as in all other cases of compact among parties having no common Judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

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