The States' Rights Tradition Nobody Knows

0:00Well, I've been told that today, June, I guess today is June 21st. Apparently, this is an important anniversary in American history because in 1788, New Hampshire ratified the Constitution. So, thus, the requisite nine states had ratified and it went into effect. So, there's a big mistake. All right, anyway, we'll talk about this later. I'd like to just start off by, first of all, mentioning a few books because I always forget to mention recommended reading as I'm going along. I want to reiterate a couple that I mentioned the other day on these general topics. James Kilpatrick, K-I-L-P-A-T-R-I-C-K, his book The Sovereign States is indispensable.

0:53Secondly, William Watkins, Reclaiming the American Revolution, is a book on the Virginia and Kentucky resolutions of 1798 and is equally important. The Watkins book is useful because it gives the background to the resolutions, the discussion of the resolutions themselves, the persistence of the principles of 98 and the relevance of some of these ideas even to today. And he mentions issues as contemporary as the medical marijuana issue and how these principles are pertinent. Then there's a book I didn't mention yesterday that I more or less recommend by Forrest MacDonald called States, Rights and the Union. That came out, I think, within the past 10 years. I mean, I remember being a student buying it, reading it.

1:40So those are the ones I recommend and other ones will occur to me as we move along. But certainly I would say those are the indispensable starting points for covering this type of material. Now this third talk today I think concludes a kind of a unit with the first two. Then the one this afternoon is sort of on its own and then the next three days, each day will in effect be a unit in and of itself. But I think it's useful just to recall the important points that I think I've been trying to make. Just collapse them together briefly so that the material today makes logical sense and you see how it follows from these ideas. I've been trying to discuss, beginning with the discussion of the Virginia and Kentucky resolutions of 1798, Jefferson's theory of the Union basically, a theory that's shared not only by Calhoun and also by lesser-known figures like St. George Tucker and Abel Upshur and still others.

2:40And that view is premised upon the idea that the United States is composed of sovereign states that joined the Union for certain limited finite purposes, delegated limited powers to a central government, reserved the remainder of the powers to themselves, but also according to the Virginia and Kentucky resolutions, I then wanted to make the point that these ideas of Jefferson did not just emerge fully formed out of his head, but that instead they represented the culmination of a line of thought that had been germinating for ten years. Jefferson, did not just emerge fully formed out of his head, but that instead they represented the culmination of a line of thought that had been germinating for ten years, ever since the Virginia Ratifying Convention in 1788.

3:35The Virginians, when they ratified the Constitution, inserted, they developed, they drew up an instrument of ratification, a document whereby they ratified the Constitution accompanying that decision to Ratify. And in that document, they made quite clear what their understanding of ratification was, what ratification really amounted to. And we looked at the primary drafters of that ratification instrument, there was a committee of five, and I quoted for you Edmund Randolph, who was on that committee, and who assured his fellow Virginians at the convention that the ratification of the Constitution was in was in a certain sense not as momentous as some people were making it appear because it was merely a league of states and that Virginia reserved all undelegated powers to itself, the new federal government had only those powers that were expressly delegated and he used the word expressly and he said that as did the instrument of ratification itself that Virginia retained the right to in fact recall powers that it had delegated to the federal government.

4:50So the compact theory is all over this instrument of ratification. And then in the ensuing years, we get not only Patrick Henry's 1790 resolution reaffirming these ideas, But we also get thinkers like John Taylor who began to propose the idea that the state legislatures ought to be intervening to prevent the enforcement of unconstitutional laws and then finally the Virginia-Kentucky resolutions where we get the idea of interposition and nullification. It develops logically from these original promises made by pro-constitution people, made by Federalists like Edmund Randolph. Then, at the end of last time, I want to look at something specific.

5:38I mean, the Virginia-Kentucky resolutions are specific, but look at specific applications of these ideas, even in states that had once opposed these ideas. And so I gave the example of the embargo imposed during Jefferson's second term that did tremendous damage to commerce and to the economic well-being of New England. New England. And we saw how did New England respond to that. Well, they responded in some cases, they called for the secession from the Union. We've got a southern president who knows nothing about northern interests, we need to secede from the Union. But more commonly we got other types of lesser forms of resistance. We got, for example, a congressman from New York expressly recalling the Virginia and Kentucky resolutions and saying, how can And we blame Massachusetts for appealing to, in effect, these principles.

6:29Why shouldn't she appeal to these principles? So the Virginia-Kentucky resolutions are being appealed to by the very section of the country that had once spurned them. We even get certain New England states saying that the embargo is not legally binding on them because it's unconstitutional, regardless of the fact that a federal court found it to be perfectly constitutional. So these are very lively forms of resistance that we see, and they're taking this Jeffersonian form. All right, well, today I'd like to start with, I said yesterday I wasn't going to talk about the Louisiana Purchase, but I think I will just briefly because I don't want to assume people know about this stuff.

7:18We're going to go backward in time for a few years, and then we'll go forward in time to the War of 1812. It's worth mentioning that in 1803, when the United States made the Louisiana Purchase and acquired an amount of territory, of course it's not simply confined to the present-day state of Louisiana, but in fact doubled the size of the country. When this took place, there were people who were opposed to it. In fact, I read not long ago, Stephen Kinsella can give you the link, I think you can bother him about it, about somebody who recently drew up a whole series of imaginary articles of impeachment for Jefferson for going through with the Louisiana Purchase. So there are still people today who would fault him for this. Why would he be faulted for it? Well, first of all, why is he so eager to acquire this territory from France?

8:06Jefferson, being in large part an agrarian, was of the opinion that it's generally preferable for a person living in a free society to, in effect, be his own boss, to be a landowner, just sort of like the old sturdy Roman Republican type, where you own your own land, you are your own boss, you don't take dictation from anybody. That's what Jefferson liked. That was the secure foundation on which he reposed the hopes of the country, was the great mass of people who were individual property owners, and what Jefferson feared was that eventually, of course, as population increases, you're going to run out of land, and it will not be possible for people to live that kind of lifestyle, and instead they'll have to crowd into the cities where they're going to be just miserable wage slaves, working for somebody else, answerable to somebody else, and not the kind of sturdy independent character in whom Jefferson placed his hopes.

9:05But if you acquire the Louisiana territory and you double the size of the country, then you indefinitely postpone that much feared day because there's all this open land for people to go and use and settle on. So Jefferson's quite anxious, though of course he has constitutional scruples. The way Jefferson interprets the Constitution, very simply, is that if you propose some Federal action, before he even considers the wisdom of the action, he wants to consider the legality of it. So he'll look at Article 1, Section 8 and see if the proposed power is listed among the delegated powers to the Federal Government. And if he does not see it there, then his presumption is that it is unconstitutional and that an amendment to the Constitution would be necessary in order to grant that power to the Federal Government.

9:51Well, of course, Jefferson does not see any authorization for the purchase of additional territory. He doesn't see that, but he really, really wants this territory. And naturally his thought is we should amend the Constitution, but the French are fickle here. They may not want to stick around making this offer this whole time during the deliberately difficult and time-consuming process of amending the Constitution. So this opportunity may pass very quickly. So Jefferson allowed himself to be talked into the position that the treaty-making power implicitly contained the authorization for what it is that he sought. And so he went ahead with the Louisiana Purchase and he concluded that since the American people are in the last resort, the ultimate guardians of the Constitution, they can render their judgment on him in the next election if they believe and he has unjustly gone beyond the limits of federal power.

10:52Well there were people, as I say, who were opposed to this and in particular we have New England Federalists, people who belong to the Federalist Party, tend to favor a stronger central government, who are Jefferson's political opponents, were actually opposed to this and one of the arguments that they raised was constitutional. They argued that Jefferson has interpreted the constitution in a manner that is unduly Well, well, well, in my opinion it sort of serves them right because all during the 1790s they were advocating a broad interpretation of the Constitution and now they suddenly realized that certain dangers come from this. Yes, they do. Yes, they do. So the Federalists were opposed, a great many of them, to the purchase. But apart from the constitutional question, what concerned them in addition was that if you add this enormous amount of additional territory to the country, you're going to absolutely swamp New England.

11:48New England's interests will be much less easily protected because New England proportionately will be less influential in the Union with it being that size. So they're very concerned. They believe New England has interests, distinct interests of its own that are less likely to be protected in the future. So they oppose this, and in fact there is talk of New England's secession, secession from the Union over this issue. And one of the leaders of that secession movement is a man named Timothy Pickering. Now Timothy Pickering is not just, you know, some yahoo, you know, fell off the turnip truck. Timothy Pickering had been Secretary of State and he's a Senator from Massachusetts. in Massachusetts, he was a distinguished figure, totally unlikable.

12:34I haven't found a single historian who likes this guy. But nevertheless, he's a qualified, he's not just a nobody. And Pickering was interested in advocating New England's secession. But the thinking was that if New England secedes and forms its own confederation, It would be more likely to succeed in the long run if New York joined it. New York is a large, influential state, so we want to get New York's cooperation. So the plot that was more or less hatched by some of these Federalists was to bring Aaron Burr on board. As soon as I mention Aaron Burr, I get snickers and laughter because my students know about him. Why do you think my students know about Aaron Burr?

13:21Oh, the dual, that's true, but no, no, no, no, no, no, much, much, no, you're way too sophisticated at a level here. Why else? The milk commercial, remember the milk commercial, the more intelligent people remember saying, I have no idea what that is, that's good, that's a good sign. The milk commercial is where this guy is trying to answer this contest question over the phone, but his mouth is full of, what is it, cake or peanut butter or something, So he can't get the name, and the answer to the question is Aaron Burr. And he can't get the name, he's talking about Aaron Burr, and it's not coming out, and they're saying, oh, sorry, and he doesn't win the prize. That's what my students were, oh yeah, Aaron Burr, yeah, the peanut butter milk guy. Yes, yes, that's who he is. Yes, thank you so much.

14:06Well, that's right, but they also do know about the duel, but let's just first say about Aaron Burr, that the idea was that we get Aaron Burr elected as governor of New York, and then he will secede New York from the Union and join us. Now, it's not clear how explicitly Burr acceded to this. I mean, there's no ironclad proof that he said, yes, I will carry out this quid pro quo, but it does seem to have been an unspoken understanding. Well, as you may know, he does not get elected governor of New York and he believes that one of the reasons he was not elected was that Alexander Hamilton had been speaking very badly of him. I mean, in saying, you know, he was a sexual deviant and a number of other things, a scoundrel, and that this contributed to his defeat.

14:58And so this is why the duel, it takes me, challenges Hamilton to a duel. Now, since dueling is actually, you know, illegal, typically, you know, because it would be considered murder if you shot, killed somebody, You can't just advertise, hey, everybody, it's a duel between Alexander Hamilton and Aaron Burr. Why don't you come out and bring your picnic basket and whatever? This is actually illegal. And when Burr does shoot and kill Hamilton, he is actually on the run at that point. So it is possible to have a more notorious vice president, possibly, than we have now. But in any event, they have this duel and, of course, Burr shoots Hamilton. Now, Hamilton goes into the duel. The Theory of Money and Credit

16:10Sometimes when someone is challenged to a duel, if the two people, the two participants of the duel show up at the duel, sometimes that was considered enough. They look at each other and say, all right, well, we're both courageous people. See you later. And they just go home and that would be the end of it. So that could have happened. What also could have happened is that Burr might have shot and missed. That's happened in the past, too. There have been a number of duels where that's happened. So Hamilton sort of hoped that that might take place. It didn't. Hamilton was shot, but he did not die instantly. He was in agony for about 40 hours, and then he died. So, funny, you can't tell what this audience is going to laugh at. So poor Hamilton died. Now, whatever people thought of Hamilton, and I'm not a big fan of him.

16:59You know, I don't think he should be shot. You know, I mean, I think he has a right not to be shot. and so when this happened it tended to throw the whole New England secession movement you know into disrepute and it was discredited because anything that Aaron Burr touched or was associated with now just turned to rust and so the whole thing the whole thing collapses as a result of that but the beginning of or at least part of a great American tradition of dueling one of my favorite American duels by the way if I may go on a tangent is is a duel between Andrew Jackson and Thomas Hart Benton Now, they had this duel, and then years later, Andrew Jackson becomes president. And Jackson is, it so happens that I believe Thomas Hart Benton was Speaker of the House at that time.

17:49So it's very odd that, sure enough, the two duelers are more or less facing each other in Washington, D.C. And if I can remember, somebody's going to have to refresh my memory on this, but one One of them shot the other in that duel, and the bullet was sort of too deep at first for them to get it out, and eventually later on they did get it out. And I believe it was that, if I remember correctly, it's that Jackson shot Benton, but all you Jackson scholars email me and tell me that if I was wrong on this. But the way it goes is that, oh, no, no, I'm pretty sure it was the bullet was in Jackson. Right, the bullet was in Jackson. So Jackson sends the bullet to the house with a note to Tom's heart, Benton, saying, Dear sir, I believe this belongs to you.

18:36And then Benton reads it, wraps it back up, returns it to Jackson, and says that, no, he believes it, I believe it belongs to you by right of long possession. So I mean, it's like a different world really, a whole different world anyway. But that's the significant thing, that here you have the New England states seriously contemplating secession. And as I say, there's a secession proposal of lesser significance during the embargo, and then there are secession proposals being thrown around, around the time of the Hartford Convention in 1814, which I'll get to, although the convention itself was more moderate. But it goes to show that in the early 19th century, you were much more likely to associate the idea of secession with the northern than with the southern states.

19:21Well, let's say something about, though, the war. New England, then, was a purchase, too. There was an ugly Catholic. But because, you know, the New England's were Protestant and this idea of bringing in two different languages, all of which were Roman Catholic. Right, they were quite clear. They're absolutely right. Yeah, they're quite clear about that. And Di Lorenzo brings that point out in his chapter on this subject, in his book on Lincoln. Now, the War of 1812 issue contains some points that are pertinent to our discussion that I think are not as well known. The War of 1812, of course, has a number of causes that are posited, and one of them involves the same kind of harassment of American shipping that had been taking place at the time of Jefferson's embargo, It encouraged him to look in that direction, to propose an embargo.

20:19So you've got both the British and the French are violating American neutral rights, though of course the War of 1812 is launched only against Britain. You have the problem of impressment of sailors because the British Navy had a tremendous problem of desertion because the conditions and the pay were quite poor. Some commentator described the British Navy as a floating hell, that it's not the most enjoyable working conditions, and so sometimes British sailors would desert. And after deserting, it would occur to them, well, what do I know how to do for a living? I know how to be on a ship, so sometimes they would join, sometimes they'd be on the merchant marine somewhere or they'd work on some ship. Well, some of them became American citizens and then worked on American ships, but the The British claimed a right to impress these soldiers back into service.

21:13That is to say, forcibly bring them back into the service of the British Navy, because the thinking was that once you're in the British Navy, you're always in the British Navy. So they can come and get you, even if you've become an American citizen. And so from the American point of view, this is an insult, and it shows that the US is not being treated with the dignity that a sovereign nation merits, because the British The British were boarding their ships and searching for deserters and sometimes plucking people who had become American citizens into the service, and in at least some cases impressing people who were American citizens who had never been in the British Navy. So sometimes the British were not terribly discriminating in the people they impressed. We get some testimony about life in the British Navy and impressment by the fact that I've read of one case of a guy who was impressed back into the service of the British Navy 11 times.

22:08He just stinks at this, right? It never occurred to him to just put on a false mustache or something. or cases of people who jump overboard and drown rather than go into the British Navy. So that's a source of irritation as well. But let's also be frank that there is at the same time a desire on the part of some people who favor the war to annex Canada. There is this land hunger and you think, well, didn't you just get the Louisiana Purchase? Why do you still have land hunger? I don't know either. It's just never enough. Let's get some really, really cold territory, too. So there is a desire for additional land, in the case of Canada. Let me take the questions afterward, please. So there's no question about that, and New Englanders saw that, that there was, at least on the part of some people, a desire to annex Canada.

22:59But the reason for annexing Canada is not just simply limited to land hunger. There was also this conception that the British position in Canada was permitting the British to outfit some of the American Indian tribes with weapons and that this was obviously not something that would conduce to American security. So there are a variety of rationales that are proposed for the war. And in June of 1812, Madison goes and gets a declaration of war, but typically in American history, declarations of war are extremely lopsided in terms of the vote. I mean, if you look at the declaration of war on Japan, for example, in World War II. But in the case of the War of 1812, in the House, the House votes 79 to 49 to go to war, and the Senate votes 19 to 13 to go to war.

23:53Very close, very close, really, by comparison with any other war. So close that, in fact, Samuel Elliot Morrison, around the time of the second half of the 20th century, said this is the least popular American war, and he included Vietnam in that. Interesting. Well, anyway, as the war goes on, New England becomes more and more alienated from it. They were not particularly in favor, by and large. The Impressment issue irritated them, but they never thought that the numbers were significant enough to warrant a full-fledged war against Britain, which they feared could interrupt profitable trade. The harassment of shipping, as I said, they had ways of getting around that.

24:41They didn't like it, but New England would make statements. New England spokesmen and newspaper editorial writers would make statements repeatedly during the war. What a shame it was that here's the country from which so many of us are descended, and that we're at war with them and it's going to cut into our prosperity and of course late in the war, by the last year of the war, the British are imposing a blockade on the coast and it's going to cause them difficulty. Well, New England therefore becomes less than enthusiastic about lending its support to the war. So what's very significant in the connection with the state's rights issue is that under the authority of President Madison, General Henry Dearborn issued an order to Massachusetts and Connecticut demanding that they call out their militias in order to protect the coast from possible British raids.

25:37Now the federal government has the authority to call the state militias into action for these, To execute the laws of the Union, suppress insurrections, and repel invasions. Well, from the Massachusetts point of view, they didn't see that really any of these three cases that would justify calling out the militia were in fact operative at that time. And they took the position that we have the reserved right as a state to decide for ourselves if any of these three conditions hold. So, for example, the Massachusetts governor answered General Dearborn by saying the states reserve the power to determine whether these three conditions held, and he requested that the Massachusetts Supreme Court render a judgment on the matter, and the Massachusetts court agreed with the governor, and declared, as this power, that is, the power to determine whether these three conditions held, to see whether any of these three conditions holds.

26:46As 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. That's a very radical position, isn't it? A very radical position. I wonder what all the anti-war but pro-central government Connecticut followed suit. Connecticut, here's an official statement. It must not be forgotten that the state of Connecticut is a free, sovereign and independent state. That the United States are a confederacy of states. That we are a confederated and not a conservative state.

27:32That the United States is a free, sovereign and independent state. that the United States are a confederacy of states, that we are a confederated and not a consolidated republic. The governor of this state is under a high and solemn obligation to maintain the lawful rights and privileges thereof as a sovereign, free and independent state, as he is to support the Constitution of the United States and the obligation to support the latter imposes an additional obligation to support the former. So if it were the case that the militia were ever to be called out for a purpose other than those listed in the Constitution, according to the state of Connecticut, it would be not only the height of injustice for the militia, but a violation of the Constitution and laws of this state and of the United States.

28:22And they went on to say that the president had no authority to demand that the militia of Connecticut quote, assist in carrying on an offensive war. That's how they looked at it. It's a war to go after Canada. And in fact, we'll get to that in just two seconds. Connecticut declared that they would not participate until such time as New England should be threatened by an actual invasion of any portion of our territory. Now, it's a fact that some companies of militia absolutely refused to cross over into Canada when the United States government began operations against Canada, because here is the confirmation of what they had suspected that at heart this is not fundamentally a defensive war.

29:11Interestingly, it was militia units of the state of New York that declared, quote, we were enlisted to protect our state, not to invade foreign territory. Now, of course, the War of 1812 ultimately, from a political point of view, wound up basically a draw, because the Treaty of Ghent that ended it in December 1814 essentially reestablished the status quo antebellum. There was no transfer of territory, indemnities, any such thing. In effect, things just were as they were before. None of the issues on which the war reposed were in fact even mentioned in the treaties. Nothing on impressment, nothing on harassment of shipping. But the harassment of shipping was dwindling away anyway as the Napoleonic Wars had wound down.

30:03So the issues were dissolving in any event. But the point is that the war winds up more or less a draw politically. From a military point of view, it was a complete British route. It was a route of an unprepared American population. I mean, as many of you know, it involved even the burning of the White House. The British soldiers actually ate the meal that had been prepared for Madison and his wife, and then they burned the place down. Bad cooking, I don't know. Anyway, but because it was very bad, It was going very badly. In fact, the greatest American victory, land victory in the war, was the Battle of New Orleans, and the symbolism of that, symbolizes how badly the war went, was that that battle occurred two weeks after the war had been declared over, but General Jackson didn't know that, hadn't actually reached him, so there he is winning this glorious victory, and the war is over.

31:01Well, that's how it went. Well, it shouldn't be surprising then to learn that Congress seriously considered the possibility of military conscription as a way of fighting the war. And here is where Daniel Webster comes into the picture. Daniel Webster was a long-time senator from Massachusetts. I'm from Massachusetts. Everything is named after Daniel Webster. The Daniel Webster Inn, Daniel Webster Highway, Daniel Webster Overpass. It's like no one ever came from Massachusetts other than Daniel Webster. But I suppose it's better than the Ted Kennedy Highway or the Ted Kennedy, I don't know, back alley or whatever. So Daniel Webster is highly regarded at that time.

31:49and even by his opponents, they at least respected him as a great speaker and as somebody who loved the country whether you agreed with him or not. Well, Daniel Webster is very often a villain in my opinion in American history, but here he's an unbelievable hero. I don't know how many people in this room have ever read Daniel Webster's speech against conscription. Anybody ever read it? It's beautiful. It was reprinted in the 1960s in the New Individualist Review, which some of you know is the publication that Ralph Reiko was involved in when he was at University of Chicago and Jim Powell. Great publication. You can get the full bound edition of all the issues in its tremendous journal. And they republished Webster's speech against conscription. This is my favorite line from that speech.

32:39Webster said, and by the way, you will see what the connection of states' rights is and principles of 98. Webster says, where is it written in the Constitution? In what article or section is it contained that you may take children from their parents and parents from their children and compel them to fight the battles of any war in which the folly or the wickedness of government may engage it? Now, could you imagine saying that today? You know, you'd be considered a wacko, anti-American, unpatriotic, and whatever. Here's Daniel Webster. Now, if you're going to be deranged enough to say Daniel Webster is unpatriotic and anti-American, then there's probably no hope for you, I would say. So, I mean, I just wonder what the neocon establishment would say about Daniel Webster. They'd probably have him hanged, for heaven's sake.

33:25The very idea that you could say that the government may actually engage you in a wicked or silly war. Apparently that's just ipso facto impossible, what you'd hear today. Well, you'll forgive me, but I'm going to read a few passages from this address, because it just leaves me speechless, how wonderful it is. Webster says, when the present generation of men shall be swept away, and that this government ever existed shall be a matter of history only, I desire that it may be known that you have not proceeded in your course, those who favor conscription, unadmonished and unforeward. And when the present generation of men shall be swept away, and that this government ever existed shall be a matter of history only, I desire that it may be known that you have not proceeded in your course, those who favor conscription, unadmonished and unforewarned.

34:19Let it then be known that there were those who would have stopped you in the career of your measures and held you back as by the skirts of your garments from the precipice over which you are now plunging and drawing after you the government of your country. And then he went on to say this. It is time for Congress to examine and decide for itself. It has taken things on trust long enough. It has followed executive recommendation till there remains no hope of finding safety in that path. What is there, sir, that makes it the duty of this people now to grant new confidence to the administration and to surrender their most important rights to its discretion? On what merits of its own does it rest this extraordinary claim? When it calls thus loudly for the treasure and lives of the people, what pledge does it offer that it will not waste all in the same preposterous pursuits which have hitherto engaged it?

35:15In the failure of all past promises, do we see any assurance of future performance? Are we to measure out our confidence in proportion to our disgrace, and now at last to grant What is there in our condition that bespeaks a wise or an able government? What is the evidence that the protection of the country is the object principally regarded? In every quarter, that protection has been more or less abandoned to the states. That every town on the coast is not now in possession of the enemy or in ashes is owing to the vigilance and exertions of the states themselves Now, here's the military conscription. It's beautiful. He says,

36:21Management, both of overcoming reluctance to the service and of subduing the difficulties of the exchequer. The administration asserts the right to fill the ranks of the regular army by compulsion. It contends that it may now take one out of every twenty-five men, at any part or the whole of the rest, whenever its occasions require. Persons thus taken by force and put into an army may be compelled to serve during the war or for life. They may be put on any service, at home or abroad, for defense or for invasion, accordingly to the Will and Pleasure of the Government. The power does not grow out of any invasion of the country or even out of a state of war. It belongs to government at all times, in peace as well as in war, and it is to be exercised under all circumstances according to its mere discretion.

37:07This, sir, is the amount of the principle contended for by the Secretary of War. Is this consistent with the character of a free government? Is this civil liberty? Is this the real character of our Constitution? Indeed, it is not. The Constitution is libeled. The people of this country have not established for themselves such a fabric of despotism. They have not purchased at a vast expense of their own treasure and their own blood a Magna Carta to be slaves. Where is it written, as I said, that's the quotation about taking children from their parents, under what concealment has this power lane hidden which now for the first time comes forth with a tremendous and baleful aspect to trample down and destroy the dearest rights of personal liberty? Who will show me any constitutional injunction, which makes it the duty of the American people to surrender everything valuable in life and even life itself, not when the safety of their country and its liberties may demand the sacrifice, but whenever the purposes of an ambitious

38:02and mischievous government may require it. Sir, I almost disdain to go to quotations and references to prove that such an abominable doctrine has no foundation in the constitution of the country. It is enough to know that that instrument was intended as the basis of a free government and that the power contended for is incompatible with any notion of personal liberty. An attempt to maintain this doctrine upon the provisions of the Constitution is an exercise of perverse ingenuity to extract slavery from substance of a free government. It is an attempt to show by proof and argument that we ourselves are subjects of despotism and that we have a right to chains and bondage firmly secured to us and our children by the provisions of our government. And then so on and on. And of course, the argument for conscription comes from the power to raise armies in the Constitution.

38:50But the power to raise armies does not necessarily imply the power to conscript people forcibly into the army. So Webster addresses that point. He says the Secretary contends, with connection to this idea that the Congress has the power to raise armies, that no restraint is to be imposed on the exercise of this power, except such as is expressly stated in the written letter of the instrument. In other words, that Congress may execute its powers by any means it chooses, unless such means are particularly prohibited. But the general nature and object of the Constitution impose as rigid a restriction on the means of exercising power as could be done by the most explicit injunctions. It is the first principle applicable to such a case that no construction shall be admitted which impairs the general nature and character of the instrument.

39:37A free constitution of government is to be construed upon free principles, and every branch of its provisions is to receive such an interpretation as is full of its general spirit. No means are to be taken by implication which would strike us absurdly if expressed. And what would have been more absurd than for this constitution to have said that to To secure the great blessings of liberty it gave to government uncontrolled power of military conscription, yet such is the absurdity which it is made to exhibit under the commentary of the Secretary of War. And then, at great length, going on in this regard, continuing his exegesis of the clause that permits the Congress to raise armies and explaining why this does not in fact authorize Military Conscription.

40:28I'll just conclude with one of his last points. He says, All the means and instruments which a free government exercises, as well as the ends and objects which it pursues, are to partake of its own essential character and to be conformed to its genuine spirit. A free government with arbitrary means to administer it is a contradiction. A free government without adequate provisions for personal security is an absurdity. A free government with an uncontrolled power of military conscription is a solicism, at once the most ridiculous and abominable that ever entered into the head of man. I know, it's incredible, it's incredible, and as I say, today this would be banned, like there are people who would want to ban this, and it's Daniel freaking Webster for heaven's sake. I mean, no greater supporter of the Union can be found than Daniel Webster.

41:19Now here's the key, not only was that a wonderful thing to listen to, but here's the key. What happens if the conscription bill should pass? Then in that case, according to Webster, these are his words, it would be the solemn duty of the state governments to protect their own authority over their own militia and to interpose between their citizens and arbitrary power, interposition, the exact language of the Virginia Resolutions of 1798. The Connecticut legislature announced that the proposed conscription bill was not only intolerably burdensome and oppressive, but utterly subversive of the rights and liberties of the people of this state and the freedom, sovereignty and independence of the same.

42:07In December 1813, a new embargo was imposed, more oppressive than even the one of 1807-9. New England began to protest yet again. The state legislature of Massachusetts was overwhelmed by petitions and demands and expressions of frustration and anger. The Massachusetts legislature then decided to establish a committee at least to try to develop some kind of a response to this situation. That committee was headed by a gentleman named William Lloyd. February 1814 he issued a report that has become known as Lloyd's Report. It was approved by the Massachusetts General Court and it said this, he's going to be making the same sort of point that New England states tried to make years earlier when they argued He also argued that the federal government's power to regulate commerce does not extend to a power to annihilate commerce.

43:09He says, a power to regulate commerce is abused when employed to destroy it. And a manifest and voluntary abuse of power sanctions the right of resistance as much as a direct and palpable usurpation. The sovereignty reserved to the states was reserved to protect the citizens from acts of violence by the United States, as well as for purposes of domestic regulation. We spurn the idea that the free, sovereign and independent state of Massachusetts is reduced to a mere municipal corporation without power to protect its people and to defend them from oppression from whatever quarter it comes. Whenever the national compact is violated and the citizens of this state are oppressed by cruel and unauthorized laws, this legislature is bound to interpose its power and wrest There it is again. There it is again. The language of interposition. This is why I want to emphasize it.

44:09This is why, as I say, Chapter 4 of the Politically Incorrect Guide to American History is geared toward this issue, because it just doesn't go away. Nor should it go away. It's wonderful, right? These are great. This is what a free people is all about. Well, one final word about the War of 1812 before moving on to other issues where we see these principles. It should be mentioned that in December 1814 there was an event called the Hartford Convention in Hartford, obviously Hartford, Connecticut, in which leading Federalists attended to discuss what should be done because by this point they were absolutely beside themselves with opposition to the war War, and to James Madison, they called it Mr. Madison's War. I sort of miss that, that old terminology, Mr. Madison's War, Jimmy Polk's War, or Mr. Wilson's War, and whatever, we should bring that back. It's his war, right? It's not my war. I mean, there is a distinction between the government and the people. We are not the same thing, for heaven's sake.

45:14Well, the Hartford Convention is totally opposed to the war, and they also believe that New New England's interests are not being adequately protected in the Union. And in particular, the fact that by historical standards later on, they couldn't have known about, of course, but that the War of 1812 was actually voted on by a very close vote, by war standards, they began to propose amendments to the Constitution that would more adequately protect New England. And so one of the amendments proposed at the Harvard Convention was that there should be a requirement of a two-thirds vote, A two-thirds majority before going to war. That obviously would have prevented the outbreak of the War of 1812. The thinking behind this was, before you engage in a matter so grave as war, you want to make sure that the whole country is fully on board with it, or at least a very substantial portion of it, not just 19 to 13 in the Senate, for goodness sake.

46:09Other proposals were that you can't have two presidents in a row from the same state. I wonder, do you think that's aimed at Virginia? You can't have presidents having more than one term, limit them to one term, because they're pretty tired of two Jefferson terms, two Madison terms, little do they know that they've got two Monroe terms still to go. So they're proposing things of this kind to protect New England. And so historians have more or less concluded that the Hartford Convention was basically dominated by moderates by moderates who wanted to reform the Union so as to make it more congenial to New England, more protective of New England's interests, and really to discourage secessionist sentiment, which was at a peak once again in New England.

46:57But we should nevertheless remember that at the time of the convention, secession proposals of various kinds were all over the Federalist press. There was a proposal by a guy named John Lowell that the original 13 states should secede and just leave the West to be its own country, just abandon the West. The West got us into this war. There were other proposals that New England should just get out and Virginia is largely responsible for our plight. All kinds of proposals were coming out in the Federalist press as possible points of discussion at the convention. So secession sentiment was, in fact, still very much live. And the convention closed with this note that they would meet again in the following year in Boston and reassess the situation, particularly if their demands had not been met.

47:45And there, I think it's probably not crazy to assume that secession would at least have been entertained at that point. They had received absolutely no redress at all. So the idea of secession is still floating around. It's not considered a crazy idea, a ludicrous idea. It's considered a progressive idea. This is the way, peacefully, people who have irreconcilable differences resolve those differences. Now, instead of going to a total war with each other and killing one out of every four of their citizens, just go your separate ways in peace. Now, let's say a few words, if we may, about the bank, the central bank, or we should say the national bank, in the United States, because here again we have states trying to resist the federal government.

48:30Now early on the first bank of the United States around 1791 was being debated on constitutional grounds and it was approved. Jefferson had been against it on strict construction grounds and because he didn't think a national bank was necessary. He didn't see the federal government had been delegated a power to establish a national bank. Hamilton took a broader view of the Constitution that in effect the bank was necessary and proper to carry out other functions of the government. He favored the National Bank, and George Washington, it would be hard to find somebody who knew less about national banking than George Washington, it changed his mind depending on who was the last person who spoke to him on the subject. And so Hamilton got to him last, I think, but also Hamilton being the Secretary of the Treasury, Washington thought this was sort of his area.

49:20He does finance and that sort of thing, so he gave him the National Bank. The National Bank. Well, it had an expiration. It was set to expire in 20 years. It had a 20-year charter. It expired in 1811. But then later it was renewed. Madison, James Madison, as president, supported the renewal of the bank, a new bank, the second bank of the United States, in 1816. And that too, unless renewed, would expire in 1836. And it's not pertinent to my discussion, but in the 1830s you get Andrew Jackson, He's reviled by historians for opposing the second bank of the United States, but he's totally heroic on this. There are some great banking treatises written in the 1830s that are totally sound. They have exactly the right reasons for being against the second bank.

50:07My favorite scene from that is when Jackson, at one point, has taken ill. He's fighting against the bank. He's fighting against the bank. His vice president, Martin Van Buren, goes to visit him. The second bank of the United States began to get a reputation for corruption, mismanagement, favoritism, also discombobulating local economies through inflationary policies and so on. and so on. And so a number of the states had really grown quite impatient with this bank. It had opened branches in ten different states, and so these states had a direct day-to-day connection with the bank.

50:58Now, the bank question had been dealt with by the Supreme Court, and John Marshall had declared the National Bank to be constitutional. And he also said that the states could not tax the bank, tax their state branches of the bank. Because a number of the states had begun trying to do that. To levy taxes on the branches of the bank in their state for the express purpose of hobbling the national bank. And so, you know, as a libertarian you wonder, well, I don't know, I have kind of mixed feelings here. On the one hand, I hate the national bank. On the other hand, I hate taxes. Well, how do I feel about taxes on the national bank?

51:43I guess I favor that. I favor if it would shut down the national bank, and then maybe they would collect the taxes and maybe give them back to the people. Maybe that would be the best way to do it. I don't know. But anyway, the states are trying whatever they can to give this bank some problems. And I'm sure a lot of you have heard the phrase, the power to tax involves the power to destroy. Well, the context for that phrase was Supreme Court Chief Justice John Marshall arguing that when the states are imposing taxes on the bank's branches, they're doing something that's going to tend to destroy the bank because the power to tax, the power to destroy, therefore the states don't have the power to tax the bank because the bank was something that was established by the whole union and no individual state has the right to interfere with a measure that was imposed by the whole union. Well, of course, there were still people who believed that

52:32So what if the bank was unconstitutional? So what if John Marshall thinks it is? Plenty of people thought it was not, and on top of it, it was obnoxious and terrible. Okay, well, what in fact do the states try to do? Well, as I say, they try to tax the bank, and I'd like to look at some specific examples of that. But we should also note on the constitutional point that even though there has been an official statement from the Supreme Court in this matter, That does not close the issue in the same way that when a federal court found the 1807-1809 embargo constitutional, that did not close the matter for Massachusetts. They said that that would be a tyrannical idea, that we can't even debate something once the Supreme Court or some federal court has spoken. So in fact, the chief judge of the Virginia Supreme Court, Spencer Rowan, who was a great guy, who would have been appointed by Jefferson as chief justice if he had had the chance,

53:26I do humbly conceive that the states never could have committed an act of such egregious folly as to agree that their umpire should be altogether appointed and paid by the other party. So he's saying that the idea that the Supreme Court could be the final judge of a dispute between the states and the Federal Government when the Supreme Court is itself part of the Federal Government would have been supreme folly. The Supreme Court may be a perfectly impartial tribunal to decide between two states, but cannot be considered in that point of view when the contest lies between the United States and one of its members. So, basically, Rowan is saying that the states have the right to tax the bank, and it's up to the states themselves to decide ultimately what is the constitutional position on this issue.

54:19So I'd like to look at the case of what happened in Ohio because this is my favorite one. They tried to make the operations of the bank difficult in Ohio in the 1820s by taxing each of the two Ohio branches about $50,000 a year. And of course, the bank refused to pay because they cited, you know, they said, look, the courts have spoken, you have no right to tax us. and a federal judge, in fact, helped to try to keep the state from collecting the taxes. Well, Ohio decided, well, to heck with the Supreme Court, to heck with these federal judges, we're going to collect these taxes anyway. So the state auditor ordered one of his employees to go down to the bank branches and collect the tax and tell them, you know, we're going to collect this tax from you peacefully, if possible, But this is your last chance. If you will not pay this tax to Ohio, we're going to do what we have to do.

55:21But one last time, the bank branch manager said, absolutely no way am I paying this tax. So this gentleman who was in the employee of the state auditor's office simply leaped over the counter, went into the vault and helped himself to $100,000. Must be fun working for the government, right? Well, Ohio of course then has to sort of give a reckoning of this behavior, and a special committee of the legislature said, the committee are aware of the doctrine that the federal courts are exclusively vested with jurisdiction to declare in the last resort the true interpretation of the Constitution of the United States. To this doctrine in the latitude contended for, they never can give their assent.

56:09Thus has the question whether the Federal Courts are the sole expositors of the Constitution of the United States in the last resort, or whether the states, as in all other cases of compact among parties having no common judge, have an equal right to interpret that Constitution for themselves, where their sovereign rights are involved, have been decided against the pretension of the Federal Judges by the people themselves, the true source of all legitimate powers. When the general government encroaches upon the rise of the state, is it a safe principle to admit that a portion of the encroaching power shall have the right to determine, finally, whether an encroachment has been made or not?

57:05In fact, most of the encroachments made by the general government flow through the Supreme Court itself, the very tribunal which claims to be the final arbiter of all such disputes. What chance for justice have the states when the usurpers of their rights are made their judges? Just as much as individuals when judged by their oppressors. It is therefore believed to be the right, as it may hereafter become the duty of the state governments, to protect themselves from encroachments and their citizens from oppression by refusing obedience to the unconstitutional mandates of federal judges. I mean, there's some courage there, right? Courageous, totally courageous statement. Well, finally, on the point of the true history of the principles of 98 and interposition and state resistance and so on and so forth, I want to say something about slavery and the various fugitive slave acts, because I think this is maybe one of the most interesting features of this history of all.

58:09Now, there is, in effect, a kind of nullification undertaken by a number of states against fugitive slave laws, and at first glance that may seem to run counter to the idea of nullification, Because nullification, as Jefferson understood it, and as later expositors understood it, involved declaring null and void an act that violates the Constitution. Well, strictly speaking, the Constitution does in fact call for the return of runaway slaves. So it may seem that to nullify the Fugitive Slave Act is really to violate one of the pillars of the doctrine of nullification. Because the Fugitive Slave Act, perhaps, may not be unconstitutional. And, of course, you may want to resist it for other reasons and other ways, but I'm just saying that it at first seems that it does not conform to the demands of nullification.

59:02But, in fact, it's not quite as clear as that. Because, for instance, one of the things that particularly irritated many of the northern states was the manner of enforcement of this fugitive slave clause that you see in the fugitive slave legislation. The first fugitive slave law is in the early 1790s, but there's widespread evasion of it. And already, from the 1780s onward, you see northern states passing so-called personal liberty laws, the purpose of which was to prevent slave owners from reclaiming any slaves that had managed to escape into the free states. And so, for example, New York and Pennsylvania, Ohio started to make it more difficult for people to reclaim their slaves, tried to at least establish jury trials for the slaves.

1:00:01But the Supreme Court in 1842 declared that any state law that obstructs a slave owner's right to recapture his slave was unconstitutional. So the federal government upholds slavery in that case. But undeterred, the states come up with other means of preventing enforcement. Massachusetts, for example, in 1843, passed a personal liberty law that simply would forbid any state official to take part in any way in catching runaways, or it would forbid the use of state facilities for that purpose. So that would mean that if I were a southern slave owner going up to a northern state, I would have to rely on federal officials to help me, and there weren't terribly many of those.

1:00:52So when the various northern states were engaged in this type of behavior, in violating the Fugitive Slave Act, in 1850 you got a tougher Fugitive Slave Act as part of the compromise of 1850. This is one of the features of that compromise that was meant as sort of a SOP to the south. And this really put teeth in the Fugitive Slave Clause of the Constitution. because it took these fugitive slave cases and put them exclusively under federal jurisdiction and it provided, it allowed special, it looked for special commissioners who basically would be empowered to issue warrants for the arrest of fugitives and the return to their masters solely on the basis of an affidavit by the slave owner like he just simply says, well that's my slave, well that's good enough for us will arrest the guy and have a trial where he will not be allowed representation or a jury trial.

1:01:52So you can't testify in your own defense if you're accused of being a runaway slave. You can't testify in your own defense. You don't have the right of a jury trial. And these federal commissioners were told that they would make $10 if they found in favor of the slave owner. And they'd make $5 if they found in favor of the slave. Sort of stacking the odds, it seems to me. And then still other obnoxious ways. They could force bystanders to assist in the capture of a runaway slave. They could punish local marshals who allowed slaves to escape because of their own negligence. If citizens were found harboring runaway slaves or in some way impeding their arrest, for Arrest, they could be fined and imprisoned.

1:02:42This was viewed as an extremely obnoxious measure, so the result was still more attempts to evade. Forrest MacDonald tells us that in Chicago, the city council declared the Fugitive Slave Act to be void, and in fact the citizens of Chicago forced a federal commissioner to free a man being held as a fugitive. In fact, McDonald says that one effect of the Fugitive Slave Act was to convert thousands of previously conservative and law-abiding northerners to the cause of abolition. It also taught them that a state's rights position was more compatible with the cause than was looking to the federal government. Well, what I find most interesting is this. What the Wisconsin Supreme Court declared in 1859.

1:03:28Wisconsin had been variously ignoring the Fugitive Slave Act. And their Supreme Court makes an interesting statement. Let's first remind ourselves of some of the most significant words from Thomas Jefferson's Kentucky resolutions of 1798. Let's just remind ourselves of them. Jefferson had written, Resolved that the several states composing the United States of America are not united on the principles of unlimited submission to their general government, but that by 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 when soever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force, that to this compact Compact each state exceeded as a state and is an integral party, its co-states forming as to itself the other party, that the government created by this compact was not made the exclusive

1:04:32or 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 parties having no common judge, each party has an equal right Here's how the Wisconsin Supreme Court defended Wisconsin's position that it was not going to assist the return of fugitives. Resolved that the government formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself, But that as in all other cases of compact among parties 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.

1:05:21Resolve that the principle and construction contended for by the party which now rules in the councils of the nation, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism, since the discretion of those who administer the government, and not the constitution, would be the measure of their powers. That the several states which form that instrument, being sovereign and independent, have the unquestionable right to judge of its infractions, and that a positive defiance of those sovereignties, of all unauthorized acts done or attempted to be done under color of that instrument, is the rightful remedy. So there are the principles of 1798, still going strong in 1859, and yet they are like the phantom principles of American history, totally lost, not ever mentioned, and it seems to me they should be mentioned like every three seconds if possible, which by the way as you notice that is what I have been doing for the past three lectures, every three seconds

1:06:19or so they have in fact come up. On the slavery issue, I think it is worth noting something that I'm sure a lot of you already know, is that a lot of the most radical abolitionists were in fact not unionists, in the sense that they felt uncomfortable about the Federal Union, and in particular the fact that the Constitution clearly recognized the slave relation. There were some abolitionists, for example, who did try to argue that the Constitution implicitly was anti-slavery and so if we just obey the Constitution as it was intended then it's anti-slavery but other people like William Lloyd Garrison took the other view Garrison was the founder of a newspaper in Massachusetts in 1831 called The Liberator and his newspaper wasn't that it had huge circulation but his articles would be reprinted in larger circulation papers and would circulate William Lloyd Garrison was well known because it so happens that the same year that he established the newspaper The Liberator, that was the year of the Nat Turner Rebellion.

1:07:29I'm thinking of somebody else. Nat Taylor was my graduate assistant in European history. The Nat Turner Rebellion was a terrifying slave revolt that really sent shock waves throughout the South, and it occurred in 1831. And the thinking was that Turner had in some way been influenced by William Lloyd Garrison. Could it really be a coincidence that Garrison starts this really fiery newspaper that takes on a much, much more violent rhetorical tone than the abolitionist movement had previously been associated with? You know, could this really be a coincidence? Well, almost certainly it was a coincidence.

1:08:17But the point is that that's the kind of fear that William Lloyd Garrison struck into the hearts of slaveholders. They knew who he was. And eventually he began the New England Anti-Slavery Society and the American Anti-Slavery Society. And he was an opponent of the Constitution. He was an opponent of voting. And he would publicly burn copies of the Constitution, which was not exactly endearing him to the mainstream of the country. So he was considered to be very much a radical. But very significant is that he actually passed through his American Anti-Slavery Society The requirement of a resolution resolved that abolitionists should make it as one of the aims of their agitation to dissolve the American Union. So he was a secessionist, but he favored the secession of the northern states.

1:09:06And he favored that partly because of his desire for political purity and the same kind of motivation that led him to discourage people from voting and taking part in the political process in a political process, because he thought you would be morally compromised by taking part in a political process whose heart, the Constitution, recognizes slavery. Well, that also motivates him to favor separation because he had the slogan, No Union with Slaveholders. I don't want to be associated with slaveholders. But secondly, of course, there's the strategic point that if you're a separate country, then you're no longer bound by the terms of any fugitive slave act of any kind. And so, slaves could just run away to the north and there'd be no obligation to return them and you could just turn away any federal agent who tried to get up there, turn them away, you have no, you get out of our country, you have no authority to come up here and this would, he thought, this would seriously disrupt the slave relations, certainly in the upper south and begin to put pressure on the whole system. So it's quite interesting to note that, you know, people who are under the impression that

1:10:15Well, state's rights is just for slavery and this and that. I think what we've seen so far is that any principle can be used for good or bad, just about, really. I mean, Christianity has been used for good or bad by people who either understand it or don't understand it or distort it. I mean, it's hard to exempt anything from that type of manipulation. But we've seen that, in fact, this tradition has been used in a great many other cases. In fact, sometimes on behalf of slaves, as we've seen, but also in a great many other areas Sometimes we don't even realize that these principles were referred to. So, having said all that, I think I had a whole other unit of stuff to do that would take us right up to the end. Instead, I think I'd rather stop and hear what you think about this.

1:11:00Because I think, as I say, this third one concludes sort of, I think, a self-contained unit of this material. So I'd be happy to hear any of your thoughts that you have or entertain any questions that you have at this point. You mentioned that you talked about New England being constrained in territory, and I remember from American history about the Connecticut Reserve and expansion of all the states across the Union until the East Treaty basically cut them off the Mississippi River. So in other words, they were expanding too, the New England states, in territorial claims. But not in 1803. I mean, the point is that in 1803, their thinking is that all these new Jeffersonian type agricultural, well, even then, they're not as industrialized in 1803 as they will be 10 years later.

1:11:53But their thinking is that they have distinct interests that can only be protected if they have more influence in the Union. And they think that, and as Dr. Prince mentioned, there's also this ethnic concern that you're going to have all these, and as you say, largely Catholic folks who live out there, who are going to introduce a discordant mix into the population. The relevant consideration is, what are the territorial boundaries of New England in 1803? And they are basically, remembering that Maine is part of Massachusetts at the time, they're basically what they are now. Two questions, but I'll leave myself to one. The argument that I've heard about is, This is a hard question. There was a minority of the people that actually supported malification, you know, just a Russian class or something like that.

1:13:06And so maybe it's not a valid argument to say that a minority can judge for the whole, whether it's malified or in Martian case, secede from the Union. I wonder if we could think about that argument. The question involves the Harford Convention and to what extent was it supported by the majority of the people and to what extent was it just an unrepresentative number of merchants. Well, we should remember that the Convention itself wound up recommending a fairly moderate course that I think a typical New Englander would have a hard time objecting to. The purpose of it was just to make sure that New England would not be overwhelmed by this series of Virginian presidents that seems to be just unstoppable at that time.

1:14:00So that point is different. In other words, the Harper Convention doesn't actually do things like say we're not going to obey the federal government on this or that point. at that point, various branches of New England governments were doing that up to then, but if they were actually going to engage in secession, let's say, an extreme measure like secession, then I think they would be fairly well obligated to do that, and I think the people would have forced them to take a measure that's that extreme through what people would have considered to be the proper channels for that, which would have been a convention elected for that purpose by the population. Yes? Was 1842 the first time the Supreme Court took upon itself to invalidate state law?

1:14:47It wouldn't be, because during John Marshall's tenure as Chief Justice of the Supreme Court, 1801 to 1835, the corpus of his decisions is in the direction of the federal government as opposed to the states. Off the top of my head I can't think of the chronology in terms of in which case do we have, which would be the first example of Marshall saying or the Supreme Court saying that this state law is unconstitutional. But we certainly know that in 1832 with Worcester versus Georgia, and obviously there were ones before that, The ones before that, I mean, I think Dartmouth College would be an example, but already 1832, when Georgia was trying to impose Georgia law on the Cherokees, Marshall said that would be unconstitutional to do that, and Georgia did that through a law, and Marshall said it was unconstitutional, and then supposedly, although it looks like he didn't actually say this, Andrew Jackson said, well, John Marshall has made his decision, now let him enforce it, but there are still earlier ones as well,

1:16:04But I don't know all the dates that are associated with it, but in the 18 teens there are a number of them that are significant. Another one? Yes, Dr. Prince? What is the future of the play back? Is that all part of the play back? Is that all part of it? Which Massachusetts? What are we talking about? I'm sorry, that's Missouri. Missouri combo. Is that all part of the play back? By the time of the Missouri Compromise, it was around 1820, what would have been operative at that time was the Fugitive Slave Act of 1793, which did not have nearly the teeth of the 1851, but it would have been taken for granted by all parties that that at that time was the law of the land, but as far as I know, it was not modified by the Missouri Compromise.

1:16:58Kevin? McCulloch v. Maryland is the three or four case where they, I'm just making sure I got the name right. I was being very interested in having you comment on the role of McCulloch, the way that history textbooks use McCulloch v. Maryland. I'll just describe at least my impression, if you can tell me if you think it's misguided. Basically it's part of a program to show the way the federal government came into its own, really. really came to sort of civilized rebellious and sort of backwards attitudes and things. So you have that, you have Marbury v. Madison, and they sort of go, this happened and this happened, look at these crazy people taxing the bank, it was just out of the blue, that's from nowhere. I mean, these people have to be talked to, you know, basically.

1:17:47Right, you know, it's hard to, I want to just put it this way. John Marshall's tenure as Chief Justice is really difficult to discuss because when he's interfering in the life of the states, he's very often doing so on behalf of property and contract. So, I mean, I have to admit that part of me thinks, well, you know what? Maybe these states shouldn't be acting like this, you know, and John Marshall won't have to smack them around. But on the other hand, he's setting a precedent for future Supreme Courts to intervene in the life of the states, when, to say the least, we're not dealing with matters of property and contract.

1:18:35So obviously, as I think has become clear, my own instinct is that obviously the states can do incredibly obnoxious things, but the Supreme Court can do really, really super obnoxious things to all of them. And so that even though Marshall, you know, some of his decisions intend in the favor of, tend toward private property, I would still, you know, I'm still concerned about the centralization of power. So, you know, so Kevin, to answer your question, certainly Marshall's decisions, the major ones, are portrayed as unambiguously progressive, I think, by a lot of people. I mean, you might get some leftists who don't like the fact that he is intervening on the side of property. But by and large, that's overridden by their desire for centralized government.

1:19:22And so, typically this, right, it's portrayed as, you know, we had this loose confederation, but now Marshall sort of, through the force of the Supreme Court, you know, creating a kind of single unified whole. And since a lot of historians, without knowing it, are Whig theorists of history, they always look back in history as if our current situation is the desired goal. So you then read history in terms of, hey, look at this, John Marshall is leading us toward, you know, supreme court imposed feminism and whatever we have today, it's wonderful. They tend to impose that kind of reading on it. And I've often thought that what we need is, I'd love to read a good book that critiques Marshall's major decisions, like one by one critiques them.

1:20:09If there is such a book, I'd love if someone could tell me what it is, but if there isn't, One good place to start would be to read the dissenting decisions. Just read the dissenting decisions in these cases. And oftentimes there are super strong arguments there. And so I'd love to see somebody, or maybe even just a documentary reader, where instead of just reading the triumphant John Marshall decision, let's get into the meat of what the alternative perspective was. Because we came very close to having that perspective. If Jefferson had had a chance to appoint, you know, I was wondering who it was that there was, speaking to England and the War of 1812, was Westerners, honestly?

1:21:12John Randolph was against it, and some of them suspected that the intentions behind the war were not altogether defensive. But a lot of New Englanders were of this belief that this aggressive posture came from the West, and that's why the sort of crackpot John Lowell came up with this idea of, you know what, it was a mistake to have anything more than 13 states in the first place. We should have stuck with that, get rid of these imperialistic Westerners, get rid of them. And this was in every Federalist newspaper except one in Massachusetts featured Lowell's suggestion as a serious proposal. Maybe we should get rid of these states. My goodness gracious, how fluid political conversation once was.

1:21:59Any other? Okay, let's see. One, two, three, please. I'm sorry, like I'm in the classroom. I'm sorry to do that to you. Yes? I was just wondering to be more clear on the issue of slavery. Is it not true that the great emancipator said that he would not get involved, that he would not just love the slave institution at all? and I don't know if this is like a conspiracy theory or something, I heard that the reason why they created Liberia was a place for people to go back to their homeland, and a lot of our fathers were about sending slaves back to their homeland. Right. You know, I just, I want to be more clear on that issue, and is it not true that the Union had many slaves too?

1:22:51Okay, right, yeah, this is basically a question on Lincoln and related issues. The question involves, you know, what was Lincoln's position on slavery and what were his announced intentions with regard to slavery, and was it not true that some of the founding fathers and important early Americans, in fact, favored the removal of some of the black population to Liberia or elsewhere? Well, we'll do one of those at a time. With Lincoln, his Republican Party took the free soil position, which was the prevention of the expansion of slavery into the territories. It did not touch on the issue of slavery in the states. That doesn't mean that Lincoln had no moral position on the subject of slavery.

1:23:37You do sometimes hear him say that slavery is a bad thing and appalling and this and that, but with regard to what he believed his political authority permitted him to do, He did not believe it permitted him to interfere with slavery in the states where it existed and he said that repeatedly. He also said that if in order to keep the union together, which was his goal, if what he had to do was to approve an amendment to the Constitution that would have forever prevented the Federal Government from ever interfering with the institution of slavery ever in the future, then he would do that. He said that basically he considers that to be constitutional law already, and if you want to have an amendment to the Constitution that would solidify that principle, then he supports it.

1:24:30So he made that perfectly clear. So the slave issue basically becomes a question of if it advances the cause of the Union and hastens the end of the war, then we'll do it. Now with respect to the Liberia question, this isn't a conspiracy theory at all. It's just a fact that there was an organization founded around 1816 called the American Colonization Society. Society, and the purpose of it, the question was what do we do with what the census refers to as the free persons of color. American census would, when it classified people, had a classification called free persons of color. These were former slaves or the descendants of former slaves who were no longer enslaved.

1:25:17By the time you get to 1860 there were about a half million of them and slightly more than half of those lived in the south. Now the free persons of color could have gotten that way, by the way, by either just being emancipated by their masters, which did happen. Some of them might be fugitives, although I don't know if you'd want to be counted by the census if you're in a fugitive. The government says I'd like to count you. I think you'd just run away, probably. But also there were some who managed to buy their freedom because of the certain type of slavery they But anyway, the question became, what do we do with these people? And it didn't matter what you believed about slavery, because some slaveholders and some abolitionists agreed that they could not be assimilated into American society.

1:26:07Now, Garrison wasn't of that opinion. Garrison was reasonably egalitarian on this. But a lot of people thought, you know, whatever we feel about slavery, whether it's acceptable or whether it's an abomination, does not touch on this question. They need to be colonized and so the American Colonization Society decided on Liberia after looking around, they decided on this place, they called it Liberia, capital Monrovia after James Monroe. But after about four and a half decades of this or four decades, they'd only managed to settle about 11,000 people there. Now that's a drop in the bucket obviously and the reason for that was that they were not going to use coercion. It was only if people voluntarily wanted to go, and by and large they did want to go.

1:26:55The freed slaves believed this is our country, at this point I would be as out of place in Africa as anyone else. And I have no desire certainly to go and start something new over there. So that's basically the story of Liberia. However, it's worth noting just how many prominent Americans were involved in it. involved in it, and in fact some of them were officers of the organization. So Daniel Webster, Francis Scott Key, Roger Tani, Henry Clay was involved, a whole bunch of them. I don't want to say somebody and have it be wrong. I've libeled them forever, but there was a tremendous amount of support for this among people of all sections.

1:27:45But it foundered on the fact that people just did not want to go. Now for Lincoln himself, you know, there's this book by the editor of Ebony Magazine about, I think it's called Abraham Lincoln's White Dream, talking about Lincoln's absolute obsession with the relocation of the free black population and he considered at one point setting aside Texas for the slave population he looked at places from the Amazon to all around the world to resettle them and he considered a constitutional amendment that would have given the Federal Government the power to raise money for this purpose It is worth noting, by the way, that at the very time, the federal government would not put up money for roads and canals because it was unconstitutional.

1:28:35They did, early on in the history of the American Colonization Society, give a $100,000 grant to that organization. It tells you a little something about the state of opinion at that time. Okay, I hope that's at least some kind of answer to your question. Do we have time for just one more? What about Maryland in relationship to it? I don't believe Liberia and Maryland went to war. I think the capital was Buchanan, Nazi's colony in Liberia when they had their... I know there were two anti-slave societies and they had to pull up their colonies next to each other. There was Maryland and one was Liberia. I believe the capital of Maryland was Buchanan and the capital of Liberia was Monrovia. I never heard that, but that's very interesting. I never heard about that. Thank you very much.