The States' Rights Tradition Nobody Knows

In 1798, the legislatures of Virginia and Kentucky approved resolutions that affirmed the states’ right to resist federal encroachments on their powers. If the federal government has the exclusive right to judge the extent of its own powers, warned the resolutions’ authors (James Madison and Thomas Jefferson, respectively), it will continue to grow — regardless of elections, the separation of powers, and other much-touted limits on government power. The Virginia Resolutions spoke of the states’ right to “interpose” between the federal government and the people of the state; the Kentucky Resolutions (in a 1799 follow-up to the original resolutions) used the term “nullification” — the states, they said, could nullify unconstitutional federal laws.

These ideas became known as the “Principles of ’98.” Their subsequent impact on American history, according to the standard narrative, was pretty much confined to South Carolina’s nullification of the tariffs of 1828 and 1832. That is demonstrably false, as I shall show below. But it isn’t just that these ideas are neglected in the usual telling; as I discovered not long ago, these principles are positively despised by neoconservatives like Max Boot and the leftists at the New York Times (or do I repeat myself?). Neither one, in their reviews of The Politically Incorrect Guide to American History, so much as mentioned Jefferson’s name in connection with the Principles of ’98. It is hard to view such an omission as anything but deliberate. To mention Jefferson’s name is to lend legitimacy to ideas that nationalists of left and right alike detest, so they simply leave him out of the picture.

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Jefferson once wrote, “When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.” To resist this centralizing trend, the sage of Monticello was convinced, the states needed some kind of corporate defense mechanism.

Our betters have already told us that the only reason anyone might wish to vindicate the cause of states’ rights is for the purpose of defending slavery or upholding some lesser form of local oppression. What follows is the tip of the iceberg of the history that, by what I shall assume is an entirely well-meaning and innocent oversight, these great scholars of American history consistently fail to acknowledge.

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The Embargo of 1807—1809

In retaliation against British and French depredations against American neutral rights on the seas, the federal government under Thomas Jefferson in late 1807 declared an embargo, according to which no American ship could depart for any foreign port anywhere in the world. (The rationale was that trade with the U.S. was a key ingredient in British and French prosperity, and thus that economic pressure might persuade them to change their policies.) The U.S. Navy was granted the power to stop and search any ship within U.S. jurisdiction if its officers had “reason to suspect” the ship was violating the embargo. Likewise, customs officials were “authorized to detain any vessel…whenever in their opinions the intention is to violate or evade any provisions of the acts laying an embargo.” Such standards fell far short of the “probable cause” requirement that generally governed the issuing of warrants for searches.

New England was especially hard hit by the embargo because so many of its people were employed either directly in foreign commerce or in proximate fields, and it was there that opposition to the policy was concentrated. In 1808 a federal district court, in the case of United States v. The William, ruled the embargo constitutional. The Massachusetts legislature begged to differ. Both houses declared the embargo acts to be “in many particulars, unjust, oppressive, and unconstitutional.” “While this State maintains its sovereignty and independence, all the citizens can find protection against outrage and injustice in the strong arm of the State government,” they said. The embargo, furthermore, was “not legally binding on the citizens of this State.”

In the midst of the crisis, a New York congressman, giving his explicit sanction to the Virginia and Kentucky Resolutions, said, “Why should not Massachusetts take the same stand, when she thinks herself about to be destroyed?” “If any State Legislature had believed the Act to be unconstitutional,” asked a Connecticut congressman, “would it not have been their duty not to comply?” He added that the state legislatures, “whose members are sworn to support the Constitution, may refuse assistance, aid or cooperation” if they regarded an act as unconstitutional, and so could state officials.

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Connecticut governor Jonathan Trumbull shared these views. “Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task — it is their right — it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.” Connecticut’s General Assembly passed a resolution that, among other things, directed all executive officials in the State not to afford “any official aid or co-operation in the execution of the act aforesaid.”

The General Assembly furthermore declared: “Resolved, that to preserve the Union, and support the Constitution of the United States, it becomes the duty of the Legislatures of the States, in such a crisis of affairs, vigilantly to watch over, and vigorously to maintain, the powers not delegated to the United States, but reserved to the States respectively, or to the people; and that a due regard to this duty, will not permit this Assembly to assist, or concur in giving effect to the aforesaid unconstitutional act, passed, to enforce the embargo.”

Rhode Island, when the embargo was at its end, declared that her legislature possessed the duty “to interpose for the purpose of protecting [the people of Rhode Island] from the ruinous inflictions of usurped and unconstitutional power.”

Interposition — the language of the Principles of ’98.

The War of 1812

During the War of 1812, Massachusetts and Connecticut were ordered to call out their respective militias for the purpose of defending the coast. The call derived from the federal government’s authority to call the state militias into service “to execute the Laws of the Union, suppress Insurrections and repel invasions.”

Massachusetts Governor Caleb Strong, however, maintained that the states reserved the power to determine whether any of these three conditions held. At Strong’s request, the Massachusetts Supreme Court offered its opinion. That court agreed with the governor: “As this power is not delegated to the United States by the Federal Constitution, nor prohibited by it to the states, it is reserved to the states, respectively; and from the nature of the power, it must be exercised by those with whom the states have respectively entrusted the chief command of the militia.”

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