by Luigi Marco Bassani, Mises.org
It is astonishing that Jeffersonian scholars have paid so little attention to the states’-rights aspect of Jeffersonâ€™s thought. If one reads the Kentucky Resolutions of 1798, Jefferson appears to be the father of the Confederate States of America much more that of the United States. Here, Jefferson sought to provide a constitutional interpretation that would at least in principle prevent the union from “consolidating.” He wanted to keep a system of loose federalism very similar to the one embodied in the Articles of Confederation.
Jefferson took advantage of the first opportunity in which the federalists openly disregarded the Constitution to address problems concerning the relationship between the federal government and the states, and his interpretation placed further limitations to federal power on the grounds that the U.S. were established as a republic based on statesâ€™ as well as individual rights.
The occasion was the approval of two acts that posed a serious threat to the system of American liberties. The Alien and Sedition Laws were approved in 1798 (under this law, you could be sent to prison for criticizing the president). The Virginia and Kentucky Resolutions, drawn respectively by Madison and Jefferson, were the opposition answer to those laws.
For the first time in American history, Jefferson outlined the political and juridical doctrine of the “State rights school” that became the standard way of viewing relations between States and Nation in the Southern states during the 19th century, up to the end of the War for Southern Independence.
Revived and perfected by John C. Calhoun, this doctrine became the heart of the controversy between the two sections of the country. Jefferson asserted that the States had created a federal government as a simple agent, subordinate to them, for limited and well-defined functions, and that the federal government did not have any right to expand its own authority.
Each individual State, as far as the controversies regarding the Constitution were concerned, had the right to determine when the compact had been breached, and what measures were most appropriate to restore the violated order and redress the wrong. Thus, it was a right (explicitly called by Jefferson “natural,” therefore sacred) of each State to pronounce the illegitimacy of an act of Congress contrary to the constitutional compact.
Jeffersonâ€™s account of the nature of the Union–a voluntary contract among free and independent States in order to establish a common caretaker for few and enumerated things–contains a great deal of common sense. In a nutshell, the idea behind the Resolutions is as follows: the States are the ultimate judges of the constitutionality of federal legislation. This requires a rigorously voluntary framework.
But the Supreme Court, a branch of the federal government, at the time was already becoming what it is now, that is to say the arbiter of conflicts between the States and the federal government. In this case, the constitutional framework is threatened, since the federal government, not the Constitution, becomes the judge of its own expansion. More generally, if the States are expected to obey any federal law, regardless of whether the act had been issued according to the Constitution, only lip service is paid to the system of guarantees known as “federalism.”
Despite the ratification of the federal Constitution, Jefferson believed that vis-Ã -vis each other, the States remained like individuals in the “state of nature.” To characterize the true nature of the American union, for Jefferson, it was sufficient to transpose the Lockean natural rights model from individuals to the States. He never appealed to the theory of sovereignty (a term that does not even appear in his original draft of the Resolutions) to claim that the States are “free and independent”: their liberty and independence lie in the nature of the bond in which they find themselves, and not in the somewhat metaphysical property of being “original political communities.”
Despite the Constitution, the States retain all of their natural rights with respect to one another–exactly like individuals in a “state of nature.” Jeffersonâ€™s appeal to nullification was a peculiar application of the theory of natural rights: a “stateâ€™s natural right,” the right of nullification, was entirely within the realm of the federal compact, and was by no means an extra-constitutional remedy. In Jeffersonâ€™s opinion, such a right derived entirely from the nature of the American union, as it had been historically constructed.
Jefferson understood better than anybody else in his generation that Congress was the real heir to the king and that the concentration of powers in the federal center would have brought about “a government of discretion.” To this ultimate evil he preferred secession, as he wrote again and again. So, yes, Jeffersonâ€™s goal was the preservation of menâ€™s natural rights, but he believed that the best way to reach that was through a strict territorial division of power.
Of course there were many inconsistencies in Jeffersonâ€™s writings, and his behavior in politics often contradicted his stated political philosophy. That said, it remains indisputably true that Jefferson was a Lockean who believed in the natural right of property and in the rights of the states as independent political entities to determine their own destinies. That so many scholars are unwilling to face these truths reflects, not contrary evidence in Jeffersonâ€™s writing, but rather the bias and wishful thinking of the academic class.
Originally published on May 23, 2002 at Mises.org
Marco Bassani, scholar in residence at the Mises Institute and author of the introduction to the Italian edition of Rothbardâ€™s Ethics of Liberty, teaches political thought at the University of Milan.