Notes on KR Constantine Gutzman's "Virginia and Kentucky Resolutions Reconsidered"

KR Constantine Gutzman, "The Virginia and Kentucky Resolutions Reconsidered: 'An Appeal to the Real Laws of Our Country'". Journal of Southern History 66:3, Aug. 2000. 473-96

Professor Gutzman wrote an excellent article in the Journal of Southern History. He shows the development of the Virgina and Kentucky Resolutions of 1798, which Jefferson (Kentucky) and Madison (Virginia) authored in light of Virginia's historical and philosophical ideas about states' rights and the compact nature of the Constitution that go back to the Richmond Ratification Convention. John Taylor, who oversaw the adoption of the Virginia Resolution, was a former anti-Federalist and fascinating states' rights advocate who deserves attention.

Gutzman starts out by noting that Edmund Randolph argued in a debate with Patrick Henry in the Richmond Ratification Convention (ratification of the US Constitution) that "the Constitution's 'necessary and proper' and 'general welfare' clauses would not grant new powers to the federal government because 'all rights are therein declared to be completely vested in the people unless expressly given away. Can there be a more pointed or positive reservation?' Randolph's explanation reduced the proposed constitution from a national charter--as it was conceived to be by the most nationalist Federalists--to the latest in a long line of compacts, stretching back to the early seventeenth century between Virginia and what Virginians understood to be 'federal' authority.

"Later on the same day, George Nicholas, one of Randolph's fellow members of the committee to draft the ratification instrument, assured the convention that the Constitution would be a contract and that Virginia was to be one of thirteen parties to it.

"As early as 1789 Richard Henry Lee counseled 'the friends of liberty to guard with perfect vigilance every right that belongs to the states, and to protest against every invasion of them, taking care always to procure as many protesting states as possible...'

In 1790 the Virginia General Assembly passed a resolution calling "Hamilton's act for federal assumption of all state debts 'repugnant to the Constitution...as it goes to the exercise of a power not expressly granted to the General Government.'"

"As in the Imperial Crisis and the Confederation period, Virginians continued to conceive of their interstate union as precisely a federal union, a union among parties that were somehow on equal footing. Virginia, not America, remained the primary unit of government; the United States government a convenience."

"...John Taylor of Caroline. An Anti-Federalist in 1787, Taylor was committed by his reading of history to a posture of hyper-vigilance in the new government's first years. If the fledgling government were allowed to lay down precedents antithetical to the contractual reading of the Constitution that Federalists had promised at Richmond, greater arrogations of the states' power would follow inevitably. If a new government be allowed to stray uninterruptedly, he wrote, 'it will soon become too strong for correction, and instead of being a blessing it will turn out a curse to its parents.'"

"(Taylor's) pamphlets of the 1790s were masterpieces of sometimes inspired, sometimes befuddled opposition to Federalism. In them, he laid out the case for the notion that federal officeholders were using their control of the government to milk other Americans of money."

Taylor argued that the states should have the power to override federal legislation. In his argument for repeal of the carriage tax in 1795 Taylor stated:

"If only 'those designed to be restrained,' for example, federal judges, could enforce the federal Constitution, 'America possess only the effigy of a Constitution.'"

Smart guy.

"In his earlier pamphlet, "An Enquiry into the Principles and Tendency of Certain Public Measures" Taylor claimed that Article V of the federal constitution recognized state legislatures' status as 'state conventions,' because it granted them a share of the amendment power. For state legislatures to protest--'to make known the public will'--could not possibly be unconstitutional. They should protest by expositing 'explanations of the constitution according with its spirit--its construction when adopted--its unstrained construction now--and with republican principles." In short, state legislatures should act as Americans have now come to think it is normal for the United State Supreme Court to act."

"To Taylor's suggestion that Virginia and North Carolina should contemplate a separate existence, Jefferson responded with his famous idea that since human nature insured there must always be parties in any free government, Virginia and North Carolina would soon be fighting each other, and even Virginia would be rent by division if it were independent. Jefferson preferred to retain the tie to New England, thus reserving Virginians' ire for Yankees...

"The flaw in the system flowed, Taylor held, from the Hamiltonian fiscal structure. The bank and the assumption of state debts had generated a large pool of money controlled by only a few--he said 5,000 of the United States' 5,000,000, and those few controlled the federal government via corruption. Political power had been transferred from the nation to a paper fabrick 'yielding a government of paper.' His solution was an amendment banning holders of federal debt and of bank stock from positions in Congress, along with another reducing senators' and presidents terms in office to three years.

"For Taylor, the most perfect embodiment of the people was the state legislature. Unlike the Congress, the Virginia General Assembly was in effect an annual convention of the people, its members chosen from small districts to short terms, thus sharing in their constituents' travails. Constitutional issues were properly decided by the state legislatures, Taylor told Jefferson in the wake of the Virginia Resolutions' adoption...He would prefer that power be left in the people, not offset against other power."

"In 1786 Jefferson had written to Madison that the general government of the United States should have power only 'as to foreign concerns' and should 'keep us distinct in Domestic ones...'...his first inaugural address as president included a call for 'the support of the state governments in all their rights, as the most competent administrators for our domestic concerns and the surest bulwarks against anti-republican tendencies.

Unlike Taylor, Jefferson favored the general government system that the constitution created. Jefferson was not an anti-Federalist.

The Kentucky Resolutions, which were not known to be authored by Jefferson until a decade after the fact, says that "'the States retain as complete authority as possible over their own citizens.'" The Constitution was limited to "special purposes". "When the federal government exceeded its mandate, its acts were 'unauthoritative, void and of no force..."

In the Second Resolution Jefferson argued that the Sedition Act was unconstitutional hence void. The Third Resolution applied the language of the Tenth Amendment and the First Amendment to the Sedition Act.

The Fourth resolution held that the Alien Friends Act was void on Tenth Amendment grounds. The Fifth and Sixth Resolutions applied the tenth amendment and Article V of the Constitution as well as Article III of the federal Constitution to the Alien and Sedition Acts.

In the Seventh Resolution Jefferson wrote that there was a danger of "the general government" construing the "general welfare" and "necessary and proper" clauses in such a way as to bring about the destruction of all limits prescribed to their power by the Constitution."

Gutzman notes that Jefferson argued that "those two clauses were meant to be subsidiary only to the execution of limited powers" and he claimed not to wipe out the balance of the Constitution by themselves granting unlimited powers. Jefferson looked forward to revisal and correction of the General Government's tendency in this regard when the time was propitious."

Interestingly, Jefferson did the reverse by purchasing Louisiana. Perhaps there is something about power that leads to an expansive definition of authority.

The eighth resolution was the longest and most important. A committee should be appointed to correspond with other states and Kentucky viewed union "for specified national purposes and particularly...those specified in the late federal compact, and it would uphold the constitution establishing such a union according to the plain intent and meaning in which it was understood and acceded to by the several parties. "Consolidation of the states' powers in one general government 'is not for the peace, happiness or prosperity of these States and 'therefore this commonwealth is determined...to submit to undelegated and consequently unlimited powers in no man or body of men on earth".

"Where delegated powers were abused, he said, elections were the remedy, but where undelegated powers were arrogated, a 'nullification of the act is the rightful remedy' and every state had a right to nullify all such acts."

A comparable resolution wasn't passed in the North because there were fewer Republicans and more Federalists.

The two resolutions were passed in 1798.

States are by definition more democratic than the federal government. Today, many counties have populations equal to or greater than the entire population of the United States in 1787, such as Queens, Los Angeles and Cook counties. Perhaps we should be thinking of county or even township rights. A single neighborhood in New York City might have the population of an entire state in the days of Jefferson and Taylor.

Have Congressmen become so much smarter that the elected representatives are equally capable of representing millions rather than thousands of representatives?

Decentralization as the Remedy for Majority Faction

In the Federalist Number 10 James Madison made his famous argument that the size of the United States would limit the extent to which a majority or large minority could impose its will on a smaller minority. His theory was put to the test in 1798 with the passage of the Alien and Sedition Acts at the time of the presidency of John Adams.

The Federalists passed the Alien and Sedition Acts, according to Richard Hofstadter, under the assumption that criticism of the administration was criticism of the government and therefore traitorous. The Acts were passed during the XYZ affair, when French diplomats had attempted to extract payments from America and many Federalists thought that a war with France would be necessary. In contrast, the Democratic Republicans were very pro French because of the French Revolution. There had been a long standing debate between the Federalists, who were pro English, and Jefferson's Democratic Republicans, who were pro French. The Federalists hoped to wipe out the Jefferson faction by labeling them treasonous. The public was frenzied by the XYZ affair much as it was by 9/11 eight years ago. The Federalists argued that the Democratic Republicans were a faction and that their criticisms of federal policy was treasonous and against the public interest. In a sense, the Alien and Sedition Act has parallels to the Patriot Act.

The French recanted and a war was avoided, so the Alien and Sedition Acts did not work strategically as what Hofstadter calls the "High Federalists" had hoped. Richard Hofstadter writes (The Idea of a Party System, p. 106):

"Federalist leaders made no secret of their hope of destroying opposition. Hamilton predicted that many Republican leaders would be remembered by the people in the same odious light as the Tories. Robert Goodloe Harper of South Carolina, a leading advocate of the Sedition Act in the House, wanted to be sure that 'no traitors should be left in the country' to jeopardize its defense. He professed his desire to imitate the internal security policies that had been adopted in England, charged the opposition with being a conspiracy, a faction leagued with a foreign power...'

"The language of the Sedition Act was vague enough to make a man criminally liable for almost any criticism of the government or its leading officers or any effort to combine for such a purpose. It made it possible for the courts to punish opinion, arbitrarily defined as seditious or disloyal, even in the absence of any overt act...'By identifying their administration with the government and the government with the Constitution, the Federalists construed criticism of the administration as opposition to the government and an attempt to subvert the Constitution...

"...In all, at least seventeen verifiable indictments were brought in, fourteen under the Sedition Act and three under the common law. Started in the main in 1798 or 1799, most of the cases came to trial in the election year, 1800, when it was hoped to stifle campaign criticism."

The indictments included the major Democratic Republican newspapers in New York, Boston, Philadelphia and Richmond as well as four smaller papers.

"But the Sedition Act was not conceived in a spirit of realism and it was not efficacious. The opposition was no small or paltry minority. As measured by representation in Congress, it was already at least equal to the administration in numbers...More importantly perhaps even than this, the country was still thoroughly decentralized, politically and geographically. Government, at the ultimate test, rests on sufficient force, and it was force that would have to be called upon if resistance to the laws became overt. The Virginia and Kentucky resolutions threatened that resistance might indeed reach this point, and at a time when the federal army numbered only about 3,500 men stationed mainly at frontier garrisons as a precaution against Indians, Virginia alone could have easily mustered a militia of twice that number and was indeed planning a force of 5,000. Nothing short of a foreign war would have created the conditions essential to raising a democratic army large enough, as Hamilton put it in one of his brasher moments, to 'put Virginia to the test.'"

"And here the demand for an army ran up against two of the deepest American prejudices: the tight-fisted rural reaction to taxes, and the long-standing suspicion (fully shared at this point by President Adams) against a standing army..."

Presumably, Hofstadter was a loose-fisted urbanite. Note that Madison was right in this case, which under other circumstances could have meant an armed conflict between predominantly Republican states and the Federalist-dominated government. It was decentralized that preserved freedom.

Centralization Begets Disharmony

One of the themes that runs through the writings of most of the Founding Fathers is opposition to political party. The opposition is found not only among the Federalists, who were the majority, centralizing party of the 1790s, but also among the Democratic Republicans, who were the opposition party in the 1790s and became the one dominant party in the "era of good feelings" after 1800. Both Hamilton and Jefferson disliked parties. In the Federalist Madison argued that faction posed a threat to liberty. Part of the opposition to political parties was the interest in harmony. References to classical history, such as the overthrow of the Roman republic by the centralizing Julius Caesar, who established an empire in place of the Roman republic, and to Athens. As well, more recent sources such as Bolingbroke and Trenchard and Gordon's Cato's Letters, were influential. According to Richard Hofstadter in Idea of a Party System (University of California Press, 1972, p. 14) Trenchard and Gordon were quoted more frequently than Locke in the Founding Fathers' writings. As well, Hofstadter argues that Washington may have seen himself as a non-monarchical realization of Bolingbroke's "Patriot King". Bolingbroke was a Tory, not a Whig, yet the Founding Fathers valued his ideas. In America, the Federalists were the equivalent of the court or Tory Party and the Democratic Republicans of Jefferson were the equivalent of the country or Whigs. Note that in the Federalist 10 Madison attacks "faction", a term which in those days referred to parties, or a more intensive, self-interested form of party. It did not exactly mean special interest group as it might today, although the meaning was close.

In part to understand the context of Bolingbroke and anti-faction libertarians like Trenchard and Gordon it is necessary to refer to de Juvenal's 1945 On Power, about which I have just been blogging. Understanding of medieval history was not so strong in the 18th century. Although Montesquieu's Spirit of Laws was a path breaking source on the subject, the Founding Fathers, like most Europeans, had a better understanding of classical (Greek and Roman) history than of the Middle Ages. Europeans did not have a firm understanding of their more recent tribal history or of the relations among the three estates, clergy, nobility and commoners. The concept of the great chain of being that dominated medieval thought was still smoldering--witness the property requirements for voting that were adopted in America. Nevertheless, the historical context preceding the 15th century was not utmost in their minds. But that history, as de Juvenal points out, were critical to understanding the more recent past, especially the English Civil War, a major factor in the 18th century's dread of party and faction.

Prior to the Tudor Kings in, the 15th century and earlier, Europe was considerably more decentralized than it is now. The barons, dukes and lords who were tenants of the king, had considerable power. In many cases their ancestors had been soldiers and officers in the invading barbarian armies, and their inherited rule originated in conquest. Much of medieval history involved the kings' wresting of power from these local rulers. The decentralization was overlaid not only by the king, who frequently had very limited resources, but also by the Church. Thus, the king's power was considerably restricted not only by decentralization and the nobility, but also by the Church. Moreover, there were considerable customs inherited from the barbarian codes, Roman law, local custom and Church law that limited the kings' power. The Hapsburg's' Holy Roman Empire, for instance, was dotted with various local duchies and dukedoms that had widely varying rules for how kings might comport themselves. Although the Hapsburg's were the most powerful family in Europe, they had limited power in their various holdings. The fact that they held a multiplicity of titles is evidence of the various restrictions on their power.

Henry VII and Henry VIII took a variety of centralizing steps in England. Among the most important was that they abolished the affinities of the English nobility, that is, the nobility's armies with which they could threaten the king. As well, Henry VIII took control of church lands, abolished monasteries which were a source of independent local power and granted considerable power to court officials like Cardinal Wolsey and Thomas Moore. He brutally suppressed Protestants as well as taking control of the Church. The court officials like Wolsey and Moore, early versions of state bureaucrats, could give out offices and favors. This included employing commoners as court officials. De Jouvenal emphasizes that the European kings in general, not just Henry VIII, gained considerable power between the 12th and 17th centuries by playing the commoners against the nobility. This meant establishing bureaucracies that gave employment to commoners, who in turn fought the nobility for power. This was accelerated in England during Henry VIII's reign.

Attendant upon Henry VIII's centralization of power was the move from Catholicism to Protestantism. Henry VIII assumed the mantle of the Pope, accruing additional power to himself and removing the historical limits that the Church set on kingly power. However, not everyone agreed on religious questions, and there ensued more than a century of bitter violence, strife, warfare and murder concerning religion, culminating in the English Civil War of the 1640s.

Viewed in large perspective, Henry VIII's centralizing steps contributed to the way the religious disagreements were mishandled. The Founding Fathers recognized this in separating Church and state. However, the Constitution was in the centralizing tradition, uniting the 13 colonies under a federal government that had more power than it had under the Articles of Confederation. The fear of faction had the same source as the interest in separation of church and state, but the Founding Fathers took a somewhat more particularistic approach in that they allowed private decision making with respect to religion but not with respect to other issues that might create factions such as the establishment of a central bank and tariffs. How far should unification go? The history of centralization was largely the development of totalitarianism. The first modern mass murders occurred under Cromwell's treatment of the Old English Irish Catholics and in the following century 16,000 Frenchmen were killed in the French Revolution.

Centralization begets conflict because if the nation is to function in harmony there must be agreement, and by uniting disparate localities and cultures into a single nation the kings and then the centralizing republicans were bound to create disagreement.

To the extent that the central government aims to manage conflict, it has to take one of four conflict resolution steps:

-Ignore the conflict by downloading decision making to the or localities. This was the basic federalist approach, which permitted a new way to look at decentralization. The medieval approach was tenancy and feudalism overlaid on manorial farming and often serfdom. The American approach, which reflected a centralizing move from 13 more independent states under the Articles of Confederation to 13 states under a stronger federal government under the Constitution with a free citizenry with inalienable rights largely composed of freemen farmers
-Compromise. By compromise I mean split the difference. This was the approach taken with respect to slavery. Limits were put on the slave trade (abolished in 1808, I believe) and over time the spread of slavery through the various compromises you study in high school, the Missouri Compromise, etc.
-Forcing, i.e., warfare or the threat of warfare. This was the outcome of the failure of the compromises concerning slavery
-Collaboration, finding creative solutions to apparent disagreements.

The point is, to the extent that the centralizing theme of Federalism was to take hold, the amount of conflict was bound to increase, and conflict was bound to become more prevalent, subverting the aim of harmony. If disagreement was to be suppressed, as it was during the Civil War, then freedom (at least for the non-slaves) was to be restricted. Compromise also led to a restriction on freedom because compromise amounts to splitting the difference. Collaboration is always the best way to solve problems, but how could the nation have found a collaborative solution concerning slavery? One idea that has been suggested would have been for the North to buy out the slaves. The combined cost of the Civil War for both sides might have covered a large share of the cost of buying out the southern slave holders. As well, it would have probably limited the bitter racism and resentment against the freed slaves.

Thus, the reason the founding fathers feared factions was the English Civil War, which in turn was the product of several centuries of medieval centralizing by the English (and European) kings. The opponents of faction and party, such as Bolingbroke and Trenchard and Gordon, were reacting to the recent history of the English Civil War, which had been preceded by religious discord, which in turn was the product of the kings' eagerness to centralize power.

De Jouvenal on the Investment Banker Bailout-Socialism of Bush and Obama

"It is far from being the case that these new aristocrats show all the characteristics of the old, or even of those who have climbed the rungs of society's ladder by their own unaided efforts. It is one thing to rise at the riser's own risks, another to owe promotion to a master's favor. A pirate like Drake, enriched by his voyages, the importance of which his ennoblement if nothing else, attests, owes everything to himself and makes a very different sort of aristocrat from a public administrator grown great in public offices often by qualities of flexibility rather than of energy.

"No absolute rule can be laid down, and there have been public functionaries who have displayed the most virile qualities. But often also, as was seen in the late Roman Empire, the functionary is only a freedman who has never shaken off the characteristics of a slave. Recruited from those freedmen, the ruling class of the late Empire became tame and spiritless.

"Towards the end of the ancient regime the French aristocracy, too, felt the effect of the ways in which most of its members had obtained their elevation in the astonishing picture of Pontchartrain given us by Saint-Simon (Pontchartrain [1674-1747]--His administration of his office was deplorable and Saint-Simon's memoirs are studded with unflattering references to him. He obtained his elevation through the influence of his father, who was Chancellor.)

"The tone of an aristocracy gets transformed by the process of internal decay, along with its restocking by elements with little in them of the libertarian spirit: securitarian elements come to predominate in it.

"It is the most pitiable spectacle to be found in social history. Instead of maintaining their position by their own energy and prestige, as men who are always ready to take the initiatives, responsibilities and risks which are too formidable for the other members of society, the privileged, whose role it is to protect others, aim at being protected. Who alone is placed high enough to protect them? The state. They ask it to defend for them the positions which they are no longer capable of defending for themselves and are therefore unfit to occupy.

"When the French nobility, recruited as it then was by the purchase of public offices, was no longer capable of excellence in war, then was the time that it got reserved to it by law the officers' berths. When to the merchants, who, like Sindbad, embarked in a voyage their entire capital there had succeeded a prudent generation of traders, the latter sought to have the king's navy secure to their travellers exclusive rights to some distant coast--from which their ancestors would have kept all intruders away themselves by their own artillery.

"...The essential psychological characteristic of our age is the predominance of fear over self-confidence. The worker is afraid of unemployment and of having nothing saved for old age. His demand is for what is nowadays called 'social security.'

"But the banker is just as timorous; fearing for his investments, he places the capital monies at his disposal in government issues, and is content to credit effortlessly the difference between the interest earned by these securities and the interest which he pays out to his depositors. Everyone of every class tries to rest his individual existence on the bosom of the state and tends to regard the state as the universal provider. And President Franklin Roosevelt cam out as the perfect psychologist when he laid down as 'the new rights of men' the right of the worker to be regularly employed at a regular salary, the right of the producer to sell stable quantities of goods at a stable price, and so on. Such are, in substance, the securitarian aspirations of our time.

"The new rights of man are given out as coming to complete those already proclaimed in the eighteenth century. But the least reflection is sufficient to show that in fact they contradict and abrogate them..."

Bertrand de Jouvenal, On Power, pp. 383-8. 1945.