EDITOR’S NOTE: The following is Woods’ complete foreword to the 2006 reprint of Abel Upshur’s 132-page book “A Brief Enquiry into the True Nature and Character of Our Federal Government: Being a Review of Judge Story’s Commentaries on the Constitution of the United States”
Abel Upshur’s A Brief Enquiry into the True Nature and Character of Our Federal Government is one of the finest and most systematic defenses of the Virginian states’ rights school of constitutional interpretation ever written -and yet hardly anyone today has even heard of it, much less read it. American law students are amply exposed to the writing and arguments of nationalists like John Marshall and Joseph Story, but know nothing of the Jeffersonian alternative expounded in the work of John Taylor, St. George Tucker, Spencer Roane, or, indeed, Abel Upshur.
Upshur (1790-1844), a Virginian statesman and legal thinker, was educated at Yale and Princeton, and later undertook legal study in his native Virginia. He served brief terms as Secretary of State and Secretary of the Navy in the early 1840s until his premature death in an explosion aboard the USS Princeton. His Brief Enquiry, though, was surely his most significant and lasting contribution to American history.
Upshur’s book is a point-by-point refutation of Justice Story’s immortal Commentaries on the Constitution of the United States (1833). Story, in turn, was among the most prominent nationalist theorists of the Constitution, holding that the American Union had been created not by discrete sovereign states but by a single, aggregated American people. That may sound like a distinction without a difference to those new to the subject, but it amounts to perhaps the most important controversy in early American history -and perhaps in all of American history.
The compact theory, which Upshur sought to uphold against the nationalist version put forth by Story, held that the United States had been formed when the peoples of each of the thirteen states, each acting in its sovereign capacity, ratified the Constitution in the months and years following its drafting in 1787. (The very fact that the states voted separately to ratify the Constitution, and that the Constitution was not ratified by a single, consolidated vote of all individuals in the thirteen states, is an important piece of evidence to compact theorists that the states, rather than some single American people, created the federal Union.) They delegated to that government a small number of enumerated powers, reserving the rema