It is astonishing that Jeffersonian scholars have paid so little attention to the states’-rights aspect of Jefferson’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 states’ 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.

Jefferson’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-à-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.” Jefferson’s appeal to nullification was a peculiar application of the theory of natural rights: a “state’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 Jefferson’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, Jefferson’s goal was the preservation of men’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 Jefferson’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 Jefferson’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 Rothbard’s Ethics of Liberty, teaches political thought at the University of Milan.

“The several states composing the US. of America are not united on the principle of unlimited submission to their general government…”
–Thomas Jefferson in the Kentucky Resolutions of 1798

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’  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.

Certainly the federal government 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 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 readers of here 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.

Watkins has done a superb job of reopening what the establishment considers closed questions. That, really, is what people in this orbit consistently seek to do: not to debate the minutiae of this or that policy proposal, but to raise and explore fundamental issues that the establishment would prefer not to discuss. That’s why we read here every day, and it is why the serious student of liberty needs to read this book.

1. In particular, see Kevin R.C. Gutzman, “Edmund Randolph and Virginia Constitutionalism,” Review of Politics 66 (Summer 2004): 469–97; K.R. Constantine Gutzman, “The Virginia and Kentucky Resolutions Reconsidered: An Appeal to the ‘Real Laws’ of Our Country,” Journal of Southern History 66 (August 2000): 473–96.

Thomas E. Woods, Jr. [visit his website; send him mail] is a senior fellow at the Ludwig von Mises Institute. He is the author of nine books, including two New York Times bestsellers: Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse and The Politically Incorrect Guide to American History. Read Congressman Ron Paul’s foreword to Meltdown.

Copyright © 2005 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Early American political thought about the Union’s nature was divided into two radically different perspectives. One of these was expressed by Thomas Jefferson’s 1798 Kentucky Resolutions, which viewed the Union as a loose compact of the states, whose legislatures could overrule and judge  the constitutionality of the federal government’s actions.

The South Carolina Declaration of Causes (1860) and the Mississippi Resolutions (1861) developed this position-using Jefferson’s premises to justify Southern states’ secession from the Union.

Jefferson portrayed the Union as voluntarily entered into by the states; the states were “not united on the principle of unlimited submission to their general government” (KR, 153).

The Union was created by the ratification of the Constitution, which served as a “compact” by which the states “delegated… certain definite powers” to the general government (KR, 154).

The government’s exercise of powers not expressly granted to it by the Constitution was thus illegitimate. For Jefferson, the Constitution both defined and limited the Union’s nature and essence.

To keep the national government one of limited and expressly delegated powers, Jefferson warned that it should not be “the exclusive or final judge of the extent of the powers delegated to itself” (KR, 154), since that would allow the government to define the scope of its powers and dissociate these powers from their original source-the states.

The states-as parties to the Constitutional compact- have no common judge among them; hence, “each party has an equal right to judge for itself, as well of the infractions as of the mode and measure of redress” (KR, 154). Jefferson acknowledged state legislatures’ right to judge federal actions’ constitutionality.

The South Carolina and the Mississippi legislatures agreed with Jefferson that the Union was a compact among the “free and independent states,” whose sovereignty was asserted in the 1776 Declaration of Independence (SCDC, 310).

In 1787, deputies sent by the states affirmed the “Articles of Union”-the Constitution-which defined the Union and required the states’ consent to take effect (SCDC, 311). The South Carolina Declaration emphasized that-while only nine out of thirteen states needed to ratify the Constitution for it to be adopted-those that refused to ratify it would have remained “separate, sovereign states… exercise[ing] the functions of… independent nation[s]” (SCDC, 311).

Via the Tenth Amendment, the Constitution assured that all powers not expressly delegated to the national government were left to the states or the people, while the federal government remained “limited to the express words of the grant” (SCDC, 311).

In the Southern legislatures’ view, the Constitution established the “law of compact” (SCDC, 311), which required mutual reciprocity of obligations on behalf of all parties to the Union.

If any party-such as the Northern states-refused to fulfill its Constitutional obligations and infringed on the rights of the other parties, the Union was dissolved and “the ends for which this government was instituted have been defeated” (SCDC, 312).

The Mississippi Resolution asserted that whenever the compact is thus destroyed, “parties to the compact have the right to resume, each state for itself, such delegated powers” (MR, 314) as they had formerly granted the national government.

According to the Mississippi Resolution, the Northern states’ explicit unwillingness to enforce the Constitution’s fugitive slave clause justified the Southern states’ secession from the Union (MR, 315).

Jefferson’s Kentucky Resolutions and the declarations of the South Carolina and Mississippi legislatures viewed the Union as a compact of sovereign states that retained broad powers and could exercise them to counter federal abuses.

Gennady Stolyarov II is an independent philosophical essayist, composer, amateur mathematician, contributor to Mises.org, editor-in-chief of The Rational Argumentator and The Progress of Liberty, and a high-ranking content producer on Associated Content.

The doctrine of nullification, i.e., the idea that states have the right to unilaterally render void an act of the federal government that they perceive to be contrary to the Constitution, finds its origins in the writings of Thomas Jefferson, most notably his 1798 Kentucky Resolutions, written to protest the Federalist Congress’s passage of the Alien and Sedition Acts.

Thomas Jefferson’s Kentucky Resolutions claim that the U. S. Constitution was a compact among the several states-whereby the states delegated certain limited powers to the U.S. government; any undelegated power exercised by the U. S. government is thus void.

Furthermore, the general government is not the final and authoritative judge of its own powers, since that would make the government’s discretion, and not the Constitution, the measure of those powers-but rather the parties to the contract, the states, have each an equal right to judge for themselves whether the Constitution has been violated as well as “the mode and measure of redress”-since there is no common judge of such matters among them.

Thus, every state can of its own authority nullify within its territory “all assumptions of power by others”-i.e., all perceived violations of the Constitution by the federal government.

The Kentucky Resolution uses the Tenth Amendment to justify a strict construction of the general government’s powers; any powers not expressly delegated to the U. S. government remain the province of the states or the people, and any exercise of those powers by the general government is void and can be struck down by the states on that basis.

Furthermore, Jefferson warns against construing the “necessary and proper” clause so broadly as to justify the assumption of undelegated powers by the general government; the intent of the clause was to only enable the execution of limited powers, not to indefinitely extend the general government’s scope. Otherwise, this part of the Constitution would be used “to destroy the whole residue of that instrument.”

Jefferson counsels the states to be vigilant against violations of the Constitutions and not hesitant to strike down unconstitutional measures by Congress or the President; he writes that “free government is founded in jealously and not in confidence” and therefore urges that “no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

In other words, the states should not trust federal officials with non-constitutional powers simply because those particular federal officials might be trusted to use those powers benevolently; this kind of “confidence of man” leads to the destruction of free government.

Gennady Stolyarov II is an independent philosophical essayist, composer, amateur mathematician, contributor to Mises.org, editor-in-chief of The Rational Argumentator and The Progress of Liberty, and a high-ranking content producer on Associated Content.

“A CONCURRENT RESOLUTION claiming sovereignty over powers not granted to the federal government by the United States Constitution; serving notice to the federal government to cease mandates beyond its authority; and stating Kentucky’s position that federal legislation that requires states to comply under threat of loss of federal funding should be prohibited or repealed.”

For those history buffs out there, Kentucky was at the forefront in asserting the principles of State Sovereignty in the early days of the Republic.   The Kentucky Resolutions of 1798 took what some consider to be the strongest position on this issue in our history.

Here’s an excerpt:

1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Read the rest of the Kentucky Resolutions here

Here’s the remainder of the modern-day Kentucky Resolution:

WHEREAS, the Tenth Amendment to the Constitution of the United States provides that “The powers not delegated to the United States by the Constitution, not prohibited to it by the States, are reserved to the States respectively, or to the people.”; and

WHEREAS, the Tenth Amendment defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more; and

WHEREAS, the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the state; and

WHEREAS, today, in 2009, the states are demonstrably treated as agents of the federal government; and

WHEREAS, many federal mandates are directly in violation of the Tenth Amendment to the Constitution of the United States; and

WHEREAS, Article IV, Section 4 of the United States Constitution states that “The United States shall guarantee to every State in this Union a Republican Form of Government…” and the Ninth Amendment of the United States Constitution states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”; and

WHEREAS, the United States Supreme Court has ruled in New York v. United States, 505 U.S. 144 (1992), that Congress may not simply commandeer the legislative and regulatory processes of the states; and

WHEREAS, a number of proposals from previous administrations and some now pending from the present administration and from Congress may further violate the Constitution of the United States;

NOW, THEREFORE,
Be it resolved by the House of Representatives of the General Assembly of the Commonwealth of Kentucky, the Senate concurring therein:

Section 1.   The Commonwealth of Kentucky hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.

Section 2.   This Resolution serves as notice and demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.

Section 3.   It is the position of the Commonwealth of Kentucky that all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions, or requires states to pass legislation or lose federal funding be prohibited or repealed.

Section 4.   The Clerk of the House of Representatives shall distribute a copy of this Resolution to the President of the United States, the President of the United States Senate, the Speaker of the United States House of Representatives, the Speaker of the House and President of the Senate of each state’s legislature of the United States of America, and to each member of Kentucky’s congressional delegation.