Nullification: How to Resist Federal Tyranny in the 21st Century
Page 10
I’ll never forget a scholarly colloquium I attended in 2003 on the compact versus nationalist debate. Of the fifteen academics in attendance, only Professor Clyde Wilson and I consistently defended the Jefferson-Roane-Upshur version of American constitutionalism, while the rest defended the Webster-Story version. One of their scholars finally admitted to us that although, strictly speaking, we were indeed correct from a historical point of view, Webster’s nationalist view was more “poetic.” Oh.
The history of Virginia, in particular, both exemplifies the compact theory of the union and points to the colonial origins of the idea of nullification. As the controversy between the American colonies and the British government intensified over the course of the 1760s, Virginians appealed to their side of the story against the mother country. 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 by their own effort and at their own expense, and were no longer subject to English law, having fallen under the “Law of Nature” instead.
That meant Virginians had not been in a subordinate position but had chosen of their own free will to enter a mutually binding relationship with the Crown. 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. Thomas Jefferson amplified this narrative of Virginia’s history in his Summary View of the Rights of British America. Of course, what followed from this version of Virginia history, in which Virginians had chosen to be governed by the king, was that if he went beyond his traditional authority and attempted to interfere with the internal governance of the colony, they could withdraw their commission to the king.
The colonists had brought with them all the liberties of native-born Britons, including the right to govern themselves in their internal affairs and to tax themselves. British kings had subsequently confirmed this understanding, with this interpretation of events being, in the words of the Virginia Resolves against the Stamp Act in 1765, “constantly recognized by the kings and people of Great Britain.” When the Stamp Act was imposed on the colonies in 1765, therefore, and the British attempted to bypass Virginia’s legislature and tax them for revenue, Virginians denounced it as a violation of this original understanding.
In early 1766, Richard Henry Lee went a step further and organized the citizens of his county into the Westmoreland Association, which became a locus of resistance to British encroachments on American liberty. Those who joined pledged their loyalty to George III, but only to the extent that such loyalty did not come at the expense of “our Constitutional Rights and Liberty.” That is to say, Virginia’s right of internal self-government had to be recognized. Because the Stamp Act violated this foundational principle, they indicated that anyone who enforced it would be punished.24
This insistence that laws made in violation of Virginia’s traditional rights of self-government ought to be considered void did not go away. In 1774, in the wake of the hated Coercive Acts, Thomson Mason (brother of George Mason, who became the father of the Bill of Rights) published a series of letters in Virginia newspapers under the name “British American” that pushed these ideas further still. Since Americans had no representation in Parliament, the acts of that body could not bind them. Those acts were “absolutely void, and m[ight] be legally resisted.”25 In February 1775, Virginia’s Richard Henry Lee wrote to Samuel Adams of Boston about certain pending British legislation. “Should such Acts pass,” he urged, “will it not be proper for all America to declare them essentially vile and void?”26
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 grievances listed in the preamble of that document revolve almost entirely around the issue of Virginia’s traditional rights to self-government—economics barely appears; religion, not at all. The right to 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. Virginia would still govern for Virginia, as she had in the past.27 This is the consistent theme, from the colonial period through the early republic.
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. At Virginia’s ratifying convention, Patrick Henry raised the concern that phrases like “general welfare” could be exploited 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 Henry’s 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. Henry Lee explained to the convention that when “a question arises with respect to the legality of any power,” we need simply ask, “Is it enumerated in the Constitution?…It is otherwise arbitrary and unconstitutional.”28
Randolph further explained:
If in the ratification we put words to this purpose—that all authority not given, is retained by the people, and may be resumed when perverted to their oppression; and that no right can be cancelled, abridged, or restrained, by the Congress, or any officer of the United States; I say, if we do this, I conceive that, as this stile [sic] of ratification would manifest the principles on which Virginia adopted it, we should be at liberty to consider as a violation of the Constitution, every exercise of a power not expressly delegated therein—I see no objection to this. It is demonstrably clear to me, that rights not given are retained, and that liberty of religion, and other rights are secure.29
Historian Kevin Gutzman, an expert on colonial and early republican Virginia, explains that it was precisely on the understanding and assurances laid out by Randolph and other supporters of the Constitution that Virginians ratified that document. “In the event of the violation of any of [Virginia’s] reserved rights, the Federalists said, Virginians would only need to point to the conditions on which they had ratified, and their claim to exemption from the disputed statute would be recognized.”30 George Nicholas, who would become Kentucky’s first attorney general, explained it thus:
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.31
Randolph and Nicholas were not merely influential Federalists at the convention, though that would have been quite enough for their assurances of the limited nature of the proposed federal government to mean something. More significantly still, they 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. Their particular “stile of ratification” went on to have the most profound influence on Virginia politics and American history.32 Virginia would be exonerated from any attempt to impose “any supplementary condition”—that is, any exercise of federal power apart from those she agreed to in the Constitution—upon her.
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 1790 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. Therefore, the legislature protested that the proposed assumption of the state debts “goes to the exercise of a power not expressly granted to the General government.” The House passed it that day, the Senate six weeks later.
By the end of the year, the Virginia General Assembly had passed a further resolution, or memorial, regarding the federal assumption policy. Note well what should, by now, be familiar themes:
During the whole discussion of the federal constitution, by the convention of Virginia, your memorialists were taught to believe, “that every power not granted, was retained” under this impression, and upon this positive condition, [which was] declared in the instrument of ratification, the said Government was adopted by the people of this Commonwealth; but your memorialists can find no clause in the constitution, authorizing Congress to assume debts of the states! As the guardians, then, of the rights and interests of their constituents; as sentinels placed by them over the ministers of the Federal Government, to shield it from their encroachments, or at least to sound the alarm when it is threatened with invasion; they can never reconcile it to their consciences silently to acquiesce in a measure which violates that hallowed maxim—a maxim, on the truth and sacredness of which, the Federal Government depended for its adoption in this Commonwealth.33
Here, as clearly as we could ask for, we find repeated the relevant themes of Virginia’s ratifying convention. Henry reminds Virginians that they had been assured all through that convention that all powers not delegated to the federal government were retained by the states. Noting the dubious constitutional basis for Alexander Hamilton’s financial program, in particular the federal assumption of the state debts, Henry then observes that it must be Virginia’s right to shield its people from the unconstitutional encroachments of the federal government. We are getting very close to the Principles of ’98, from a committee that included Henry Lee and Patrick Henry.
As we have seen, it was not the skeptics of the Constitution who insisted in Virginia’s ratifying convention that their state entered the Union on the strict condition that it be exonerated should the new government stray beyond its delegated powers. This was the assurance that the Federalists themselves gave to those who were skeptical of the Constitution. So we should not be surprised to discover, with historian William Wirt Henry, that the 1790 document from the Virginia legislature, quoted above, “was the work of the advocates, as well as of the opponents, of the Constitution.”34 Colonel Henry Lee, for example, had been a vigorous proponent of the Constitution during the ratifying convention, but after observing the behavior of Congress he went so far as to write to James Madison: “To disunite is dreadful to my mind; but dreadful as it is, I consider it a lesser evil than union on the present conditions.”35 (In August 1799, Jefferson told Madison the same thing: those who cherished liberty, he said, ought to “sever ourselves from that union we so much value, rather than give up the rights of self-government which we have reserved, and in which alone we see liberty, safety and happiness.”36)
What all this means, according to Professor Gutzman, is that Nicholas and Randolph’s explanation of the Constitution* and by extension 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 on an equal footing (thirteen contracting parties, as Nicholas had put it). 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.37
So by the time of the Virginia and Kentucky Resolutions of 1798 and their doctrines of interposition and nullification, there was nothing new or unusual about such views. They were merely the logical implications 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 of 1765 and his General Assembly Resolution of 1790.38
Historians have sometimes tried to claim 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.39 But as we have just seen, nullification was in fact the culmination of a decade’s worth of Virginian political thought traceable to the ratifying convention, and even further back with the inspiration they derived from Bland’s Inquiry and Jefferson’s Summary View and what those documents said about the status of Virginia vis-à-vis Britain at the time of her creation and throughout the colonial period. 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. Professor Gutzman observes, “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.”40
As late as 1825, the year before his death, Jefferson prepared for the Virginia legislature another series of resolutions reaffirming these principles. He called them “The Solemn Declaration and Protest of the Commonwealth of Virginia, on the Principles of the Constitution of the United States of America, and on the Violation of Them.” He decided against pursuing them, since an amendment granting the federal government the disputed power (in this case, federally funded internal improvements) was before the Congress, and because he thought it better for a state other than Virginia to take the lead. It remains a useful document in what it reveals about the consistency of Jefferson’s thought over time. Here, yet again, we see reflected the understanding of the nature of ratification that the Federalists themselves had described thirty-seven years earlier at the ra
tifying convention:
The States in N. America which confederated to establish their independence of the government of Great Britain, of which Virginia was one, became, on that acquisition, free and independent states, and as such authorized to constitute governments, each for itself, in such form as it thought best.
They entered into a compact (which is called the Constitution of the US. of America), by which they agreed to unite in a single Government as to their relations with each other, and with foreign nations, and as to certain other articles particularly specified. They retained at the same time, each to itself, the other rights of independent government, comprehending mainly their domestic interests….
But the federal branch has assumed in some cases and claimed in others, a right of enlarging its own powers by constructions, inferences, and indefinite deductions, from those directly given, which this assembly does declare to be usurpations of the powers retained to the independent branches, mere interpolations into the compact, and direct infractions of it….
Jefferson then had Virginia protest her loyalty to the Union, while at the same time noting that there was but one thing worse than disunion:
Whilst the General assembly thus declares the rights retained by the states, rights which they never have yielded, and which this state will never voluntarily yield, they do not mean to raise the banner of disaffection, or of separation from their sister-states, co-parties with themselves to this compact. They know and value too highly the blessings of their union as to foreign nations and questions arising among themselves, to consider every infraction to be met by actual resistance; they respect too affectionately the opinions of those possessing the same rights under the same instrument, to make every difference of construction a ground of immediate rupture. They would indeed consider such a rupture as among the greatest calamities which could befall them; but not the greatest. There is yet one greater, submission to a government of unlimited powers.41