What States Rights Really Mean

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.1 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.

As many LRC readers well know, one important aspect of this process involved the Supreme Court’s increasingly expansive interpretation of the Constitution’s interstate commerce clause, such that practically everything came to be defined as "interstate commerce" and therefore subject to federal regulation. Reclaiming the American Revolution contains the best short discussion of the original intent of the commerce clause, and its subsequent perversion, that I have read. (He also discusses the clause’s relevance to such present-day controversies as medical marijuana and federal hate-crimes legislation.)

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.