Friday, February 12, 2010

The Jeffersonians Were Right After All

by Thomas Woods,


To the casual eye, Kevin Gutzman has written a scholarly book about Virginian political thought and practice from revolutionary times through 1840. But its scholarly merits do not exhaust the merits of Virginia’s American Revolution: From Dominion to Republic, 1776-1840. Readers are also treated to the incidental pleasure of watching the Straussian rendering of American history dismantled piece by piece.

As that version would have it, the United States was formed by a single American people in the aggregate and is not and never was a compact among sovereign states. The states are necessarily subordinate in their relationship with the federal government, never having enjoyed independent existences of their own. They possess no corporate mechanism by which to resist federal usurpation, and they are bound to accept the federal government’s monopoly on constitutional interpretation.

Gutzman begins his story in the 1760s, as the controversy with the mother country is growing more and more intense. Richard Bland, who served in the House of Burgesses, began his 1766 pamphlet An Inquiry into the Rights of the British Colonies by revisiting his colony’s early history. In coming to these shores, he said, Virginia’s settlers had availed themselves of the natural right to emigrate. They had come to a new land at their own expense, and were no longer subject to English law, having fallen under the “Law of Nature” instead.

That meant Virginians had been in a position to enter, of their own free will, into a mutually binding relationship with the Crown, which they subsequently did. They expected future kings to abide by James I’s promise that Virginia’s form of government would never be altered. Virginia could be taxed only by its representatives, and possessed “such Freedoms and Privileges as belong to the Free People of England.” The Crown had repeated this guarantee numerous times, said Bland, in its commissions to Virginia’s royal governors.

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Thomas Jefferson lent his own support to this narrative in his Summary View of the Rights of British America, but as Gutzman observes, there is “virtually nothing in Jefferson’s Summary View that Mason, Bland, Carter, or the Burgesses had not said before.”

The preamble to Virginia’s republican constitution of 1776 spelled out Virginia’s understanding of its legal status before the world, as it had been explicated by Bland and Jefferson. Virginia had the exclusive authority to govern for Virginia. The king, meanwhile, had unjustly refused to accept a position as head of a great commonwealth of dominions tied together by a common loyalty to his dynasty.

The grievances listed in the preamble revolve almost entirely around the issue of self-government – economics barely appears; religion, not at all. That self-government was later reaffirmed in the Articles of Confederation, Article II of which described the states as having maintained their “sovereignty, freedom, and independence.” Virginians were persuaded to adopt the federal Constitution in 1788 on the grounds that that sovereignty would hardly be affected by the proposed confederation.

With all the emphasis that is normally placed on the Constitution’s Framers, we are apt to neglect the importance of the ratifiers, for it is they whose interpretation of the Constitution – and in particular, the precise nature of what they believed they were getting into – is of ultimate importance. And here is the heart of Gutzman’s argument.

At Virginia’s ratifying convention, the concern was raised that phrases like “general welfare” could be cited by ambitious politicians who wanted to exercise powers beyond those outlined in Article I, Section 8 of the Constitution. Federalist Edmund Randolph, who had been Virginia’s attorney general for the past decade, assured everyone that his fears were unfounded, for all rights were declared in the Constitution to be “completely vested in the people, unless expressly given away. Can there be a more pointed or positive reservation?”

In other words, this was a strictly limited and federal government.

George Nicholas, who would become Kentucky’s first attorney general, explained:

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.

Randolph and Nicholas belonged to the five-man committee that was to draw up Virginia’s ratification instrument. They were in a unique position to articulate the understanding that would govern Virginia’s ratification.

Virginians kept this limited view of the Constitution and the federal Union very much in mind into the 1790s. Disturbed by Alexander Hamilton’s financial program, particularly the federal assumption of state debts, Patrick Henry drafted a resolution for the Virginia legislature in which he borrowed from the language of the assurances of Randolph and Nicholas that the federal government would have only those powers expressly delegated to it. The House passed it that day, the Senate six weeks later.

Shortly after Henry drafted his resolution, a General Assembly committee issued a report about the Washington Administration’s policies, which it found alarming. It declared (borrowing from Randolph and Nicholas) that the states were “contracting parties” whose rights were “sacred.” It insisted, echoing Randolph, that “every power not granted [to the federal government] was retained” by Virginia.

What this means, Gutzman explains, is that

Nicholas and Randolph’s explanation of the Constitution, and thus of the significance of Virginia’s ratification, had come to be seen as completely authoritative by the overwhelming majority of Virginia’s political leadership. As in the Imperial Crisis and the Confederation period, Virginians conceived of their interstate union as precisely a federal union, a union among parties that were somehow on an equal footing (as Nicholas had put it, thirteen contracting parties). Virginia, not America, remained the primary political unit, the United States Government a convenience.

Virginians continued to draw out the implications of these views over the course of the 1790s. According to John Taylor of Caroline, the great Virginian political pamphleteer, “The confederation is not a compact of individuals; it is a compact of states.” It was therefore the responsibility of the state legislatures to monitor the federal government and, if necessary, to prevent the enforcement of laws that violated the Constitution.

Constitutions are violated, Taylor said, and it would be absurd to expect the federal government to enforce the Constitution against itself. If the very federal judges the Constitution was partly intended to restrain were the ones exclusively charged with enforcing it, then “America possesses only the effigy of a Constitution.” The states, the very constituents of the Union, had to do the enforcing.

So by the time of the Virginia and Kentucky Resolutions of 1798, whose doctrines of interposition and nullification held that the states could refuse to enforce any federal law they considered unconstitutional, there was nothing new or unusual about such a view. It was merely the logical implication of assurances by Federalists at the ratifying convention, assurances that had dominated Virginia’s constitutional thought in the ensuing decade.

Those resolutions, in other words, “floated like leaves on the stream of the Virginia constitutional tradition of Jefferson’s A Summary View of the Rights of British America, Richard Bland’s An Inquiry into the Rights of the British Colonies, John Taylor’s pamphlets of the 1790s, and the Richmond Convention’s instrument of ratification (as explicated by George Nicholas and Edmund Randolph).” In form and content they belonged to the tradition of Patrick Henry’s Stamp Act Resolves and his General Assembly Resolution of 1790.

Historians had sometimes claimed that Jefferson, the anonymous author of the Kentucky Resolutions, hastily devised nullification as an ad hoc response to the Alien and Sedition Acts’ assaults on civil liberties. But as Gutzman shows, nullification, Jefferson’s proposed remedy, was in fact the culmination of a decade’s worth of Virginian political thought traceable to the ratifying convention. There was nothing ad hoc about it.

The principle of local self-government and against interference from distant central authorities was central to Virginian political thought both before and after the War for Independence. This is a key point of continuity between late colonial Virginia and the Virginia and Kentucky Resolutions of 1798. “As during the Imperial Crisis, so after the enactment of the federal Constitution, Virginians put their state first and the distant authority they had erected for their state’s convenience – formerly in Great Britain, now in the federal capital – somewhere down the list.”

Now if someone were to try to use this history as an argument in support of states’ rights today, or more generally on behalf of the compact theory of the Union, one can imagine a predictable response: Virginia was only one state, and its ratification debates do not authoritatively bind others in their own interpretations of the Constitution and the nature of the Union.

Gutzman has anticipated this reply, and has elsewhere answered it – persuasively, to my mind. Since Article II of the Articles of Confederation declared the states (including Virginia) to be sovereign, and since the delegates to Virginia’s ratifying convention explained to the people of Virginia that their state was one of thirteen parties to a compact from which they would be exonerated if it exceeded its delegated powers, then how could other states lack such a status themselves? If we accept the co-equality of the states as a constitutional principle – that is, some states cannot have more or different rights than others – then no other conclusion seems to follow, even if other states may have understood the nature of the Union differently at the time they entered.

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In light of all this, one can imagine Gutzman’s opinion of the centralizing John Marshall, but Marshall figures little in this book, which focuses primarily on Virginia’s experience rather than on the Union as a whole. For Gutzman on Marshall, see his excellent book The Politically Incorrect Guide to the Constitution.

In short, Virginia’s American Revolution is not only an invaluable contribution to the scholarly literature, but it is also a treasure trove for those who would recapture the original American republic.

Thomas E. Woods, Jr. [visit his website; send him mail] is a senior fellow at the Ludwig von Mises Institute. He is the author of nine books, including two New York Times bestsellers: Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse and The Politically Incorrect Guide to American History. Read Congressman Ron Paul’s foreword to Meltdown.

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