Thomas Jefferson and the Principles of '98

0:00This week begins a series of ten lectures on aspects of American history that are interesting to me. They are idiosyncratically chosen and, well, I should say, it's not entirely coincidental. The topics are not just random. I tended to focus on areas that most seemed to tick people off when my book came out. And I want to rub salt in the wound by expanding on them, going into much greater detail on subjects that what I find sort of funny is that a lot of my critics seem to know basically nothing about. So I want to really drive them crazy talking about things like nullification that you're not supposed to talk about. A wonderful experience for me a couple weeks ago was I was speaking at a conference that was taking place inside one of the house office buildings in Washington D.C.

0:49And I get up there and gave a talk on nullification and the principles of 1798. And for those of you who don't know what that is, by the time we get to the end of today and you know what it is, you'll understand what a glorious moment for me that was to be able to stand up there and say things that were so subversive and yet, at the same time, so characteristically American. I mean, there's the old America right there of Thomas Jefferson. Alright, well I'm going to start right in then, talking about the title of this first talk, is Thomas Jefferson and the Principles of 98. What does that mean? Well as we go along, you may think that I don't mean to be insulting your intelligence if I read to you the Supremacy Clause of the Constitution or explain what it is.

1:34I realize that we have a diverse audience, we have people from other countries, we have the webcast all over the place, I don't want to take anything for granted. And in my own background, where I teach, I've got people who would succeed at any college and are very highly skilled, and I have people who, let's just say, aren't so skilled. And I've sort of been able to formulate a style that is able to appeal to them all and to explain things to them all. and I will be stopping for questions at the end and feel free to ask anything you like and you shouldn't think, well, you know, if I ask this question then he'll think I wasn't listening or this is a silly question. I'm telling you, I've heard all the silly questions.

2:20There really aren't any silly questions because you should, you know, if you have the question then probably somebody else in the room has it and it could actually just be that I left something out or I was unclear on something, it's totally legitimate In addition to that, one of the things after you've taught for a number of years that you learn is how to make even a not the best question in the world sound like an intelligent question. If somebody asks an odd question, you have this skill of turning it around and making it sound like a brilliant question. The only time I was stumped on that was when I was asking students could they list for me one of the rights protected in the Bill of Rights. In the Bill of Rights, I said the Bill of Rights are the first ten amendments of the Constitution. So can you just give me an example of one?

3:06And I kid you not, the student said, thou shalt not kill. So I thought, all right, the poor kid's thinking of the Ten Commandments. And I'm trying to say ten amendments as clearly as possible. And this one, I didn't see how I could turn. So I just pretended I didn't hear that. But then he continues shouting out other commands, you know, have no false gods, and I thought, there's really nothing I can do. So if I say, hey, look over there and I run away, that's a sign that it was a bad question. All right, anyway, let's get started with the year 1798, which is such a critical year in American history because very, very important documents are drafted in that year.

3:52And you can tell that they are central and important documents, that they are documents in the service of liberty, they are documents that the powers that be very much detest. You can tell that because on the 200th anniversary of their drafting, no government agency commemorated them. Absolute silence in 1998 and it's no surprise. In the late 1790s, diplomatic relations between the United States and France reached really a low point. They had been deteriorating for several years And by the later 1790s what developed was what has come to be known among students of American history is the Quasi-War with France. Quasi-War because it's not a full-fledged declared war on the part of either party.

4:39It does not involve a massive invasion of one country or the other. It is in effect a series of naval clashes in which both sides are engaging each other on the seas. and the French are, in some cases, seizing American shipping and so on. That's, in effect, the nature of the quasi-war with France. It is by no means a total war, but the United States was on enough of a war footing that President John Adams would go out in public, oftentimes with a sword at his side to indicate to people that we're on a sort of quasi-war. I don't know what he would have had in a full-fledged war, but a quasi-war apparently equals a sword. I don't know if he's expecting to run into a Frenchman, but there you have it.

5:26So this is going on, and the significance of this is some legislation that's passed in 1798, passed by the Congress and apparently reluctantly signed by John Adams, called the Alien and Sedition Acts of 1798. Now these acts, to make a long story short, do some things along these lines. The Alien Acts, for example, one of the features of that, all this is explained in my Chapter 4, at least this part of what I'm saying. But among other things, the Alien Act had the function of basically going after aliens in the country who were in some way disloyal or whose political allegiances were not so clear.

6:14The idea being that during wartime you have to put more controls on people's liberty we've all heard this argument many times and there was a concern that this had a partisan motivation that it was actually aimed at Albert Gallatin who was a Swiss born important Pennsylvania Republican who later became Secretary of the Treasury under Thomas Jefferson so this would possibly be used in a partisan way let's recall that there was a party known as the Federalist Party There was a party to which President John Adams belonged, to which George Washington had belonged and associated with, and there were the Republicans of Thomas Jefferson, not the Republicans of today of course, but the Republicans of Thomas Jefferson, James Madison and the like, and there was a concern on the part of the Republicans that the Alien and Sedition Acts were really just a grandiose rationalization for criminalizing political opposition and tossing Republicans in jail, and particularly the Sedition Act, because the Sedition Act in effect criminalizes excessive criticism of the Federal Government,

7:25that if you do something that tends to bring the Federal Government into contempt or disrepute, then you could be brought up on charges, you could be fined, you could be tossed in jail, And there was concern that this could be used, again, as a means for the Federalists simply to suppress the Republicans. And it did happen in some cases. There were at least a couple of dozen people imprisoned over this and Republican newspaper editors. And, of course, these newspaper editors believed they were engaging in the normal exercise of the freedom of the press, but they were told that, no, in fact, you have crossed the boundary into seditious speech. Now, Jefferson himself was, of course, Thomas Jefferson was the vice president at the time. And this was part of the beauty of the original constitutional structure, was that whoever got the most votes in the presidential election was elected the president.

8:17And whoever got the second most votes was elected the vice president. So this sometimes meant that you had, you know, sort of like the odd couple, that you got two different guys in there and they weren't running together as a ticket or whatever. However, sometimes they have got totally different governing philosophies. So that's Thomas Jefferson's position. He's in there with John Adams. He's a Republican, Adams is a Federalist. Jefferson's very concerned about this legislation and yet his own president has signed it. So he's in a bit of an awkward spot in that it would be a bit unseemly for him to go out on the offensive against it, seeing that he belongs to the very executive branch whose task it is to enforce these laws. Well, Jefferson feared the partisan nature of the legislation, certainly, as one of his concerns, that his party would be criminalized in effect.

9:06There's also some complaining between Jefferson and Madison in their correspondence with each other that somebody is opening their mail. This is quite serious that this is taking place. There was a case of a gentleman who said, and I don't know how the FCC will feel about this, so I'll change the bad word. There was one gentleman who said, I hope that President John Adams, I hope that the presidential saluting canon hits President Adams in the, we'll say, behind. And this poor guy was fined $100 for that. So that's what the legislation was about, and as I say, Jefferson feared that it would be used in a partisan way. And if you actually look at section two of the Sedition Act of 1798, it is quite clear that you are not to criticize the president, and you are not to criticize either house of congress, and so on and so forth.

9:58But it skips right over the vice president. You can say anything you want to about him. He belongs to the other party. So, I mean, the partisan nature of this was not exactly being concealed with terrific energy. And Jefferson is not an idiot and could perceive this. But of course there's much more at stake than merely partisan politics. There's also a constitutional question at stake. Now, modern students today, when they hear the terms of the Sedition Act of 1798, immediately think First Amendment. This is a violation of the First Amendment freedom of speech. And that was Jefferson's view. But apparently at that time that was not the majority view. The consensus appears to have been that the First Amendment did not in fact protect seditious speech.

10:46The understanding was that the First Amendment meant that there was, the typical phrase that was used, there's no prior restraint when you go to publish. That is to say there's no censorship board that's going to prevent you from publishing what you want to publish. So you have free speech, but once that speech gets out there, if it's seditious, well then you could get in trouble for it. But nobody stopped you from publishing it in the beginning. That was the understanding of what that meant. No prior restraint, but nevertheless you would be held responsible for your speech if it were, for example, seditious. And in fact, the Sedition Act in some quarters was considered to be a liberalization of the understanding of sedition because, for one thing, truth could be admitted as a defense. You could say, well, yes, I said terrible things about the government, but they do happen to be true, and under this Act, you could actually be exonerated if what you said actually turned out to be true.

11:36So Jefferson then fell back on the 10th Amendment, because if the 1st Amendment was not absolute, there's no absolute consensus on seditious speech vis-a-vis the 1st Amendment, then there's the 10th Amendment. Now, the 10th Amendment is absolutely critical, and I assume people in the room know what the 10th Amendment is, but I'm still going to tell you. Last month I was at a private school in Wisconsin called Brookfield Academy. I had just given a talk the previous night in Milwaukee and then I spoke to some high schoolers at Brookfield Academy. Well, if you live in Wisconsin and you're listening to this and you're not sending your children to Brookfield Academy, I don't know what's the matter with you because this place is unbelievable. I mean, in between classes, instead of a big jungle with savages screaming and crimes being committed and whatever, People are playing a quick game of chess. Typical dorks just like me. Wonderful. Hope they didn't hear that.

12:28I mean that in the best possible endearing sense. But I asked them, each one of the classes I was in, I said, Does anybody know what the 10th Amendment says? 10th Amendment of the Constitution. Thomas Jefferson said it's the cornerstone of the whole document. Anybody know what it means? I kid you not. I got this answer. The Tenth Amendment says that all powers not delegated to the Federal Government by the states listed in Article 1, Section 8, and not prohibited to the states as listed in Article 1, Section 10, are reserved to the states and to the people. Well, after I regained consciousness I said, congratulations, that's wonderful, that's exactly the answer I want, I'm changing jobs and coming out to Wisconsin. Whereas typically, if you ask that in a college classroom, what is the 10th Amendment? You can pretty much hear crickets.

13:18No response at all. I don't know what you're talking about. They're probably going to give you the 10th Commandment or something when you ask them. So the 10th Amendment, according to Jefferson, is the great cornerstone. And it's often said by people that one of the objections that people originally had to the Constitution was that it lacked a Bill of Rights. But more specific than that, specifically what a lot of people wanted was something like the 10th Amendment which was a guarantee of self-government, that the states have only delegated to the federal government those powers that are listed in Article 1, Section 8 they reserve the bulk to themselves. So Jefferson applies this to the Alien and Sedition Acts. He says, where did the states delegate to the federal government the power to criminalize these things? Well, nowhere that I can see. I don't see it in Article 1, Section 8.

14:04So therefore, the federal government is usurping a state power. So this is Jefferson's argument against the legislation. Now, what are his options here in terms of this? I mean, certainly states could secede from the Union. Jefferson believed that. It drives people crazy to point that out. So let me say that one more time. Jefferson believed in the right of a state to secede from the Union. He was not crazy. He was not a lunatic. Jefferson was not a lunatic, he was a rather intelligent man, and he believed this, but he wanted to make the point that secession would be a move that you would take really only when things had come to an intolerable state. And it would be rash, it would be just premature to consider secession at that moment, but Jefferson did have friends, as some of you well know, like John Taylor, who were advocating Jefferson said that this is not yet the time for that, not yet the time for that, so that's too drastic for something just as this.

15:00Jefferson could simply counsel submission to the legislation, you know, let's just go along with it, but of course to Jefferson this is unthinkable because, you know, after a great effort we have this Constitution. Jefferson could simply counsel submission to the legislation, you know, let's just go along with it. But of course to Jefferson this is unthinkable because, you know, after a great effort we have this Constitution. If we then permit this to take place, an unconstitutional usurpation of state powers, then we've given away the whole store, that's intolerable as well. He could wait for the next election, he could wait for 1800 and just elect a new president who might repeal the legislation. It's set to expire the day before the next president takes office, so you could just wait.

15:45But waiting, I mean, who knows at that time how rigorously it's going to be enforced? It turns out it wasn't enforced particularly obnoxiously, but who could know that at that time? And, you know, for all Jefferson knows, all the Republican newspaper editors could be languishing in jail by then, so you don't necessarily want to wait. There's also the concern that, of course, elections do not always mean that a wonderful person takes office. I mean, sometimes people vote for dumb people. I know you just want to get up and leave that I would say something like that, but sometimes people vote for dumb people. It hasn't happened recently, of course, we haven't had this happen, but this could happen. So you can't wait for that necessarily. And finally, for people who began to take Jefferson's position, which I'm about to lay out what Jefferson finally decided on, the thinking was that if the Federal Government violates, if some politician, some political leader violates or in some way abuses, let's

16:44say, one of the delegated powers, one of the powers that the Federal Government enjoys under Article 1, Section 8, if they abuse one of those powers, then you vote them out. But if they usurp, if they take over one of the state's reserved powers, well, that's This is not something you just vote somebody out for. This is something that's a dangerous breach of the constitutional compact and that needs to be met much more swiftly and more resolutely and more immediately. So Jefferson came up with an idea that became known as nullification. Nullification was spelled out in a document that Jefferson drafted anonymously in 1798, is known as the Kentucky Resolutions of 1798, and in the Kentucky Resolutions of 1798, Jefferson is going to lay out the objections to the Alienance Addition Acts and then a possible course of action that the states might consider following in order to counter this federal usurpation.

17:47Constitutions, Jefferson understood, do not enforce themselves. If you violate them, there are no fangs that come out and bite you. You have to enforce them through vigilance. You can't just expect them to be enforced automatically. Jefferson proposed basically the following. That since the states came before the federal government, obviously, this does not need to be explained to anybody other than a certain institute out in California that will remain nameless. We'll tell you that over lunch if you need to know that, but the point is the states were obviously there first. They created the federal government and endowed it with certain enumerated powers. By the way, whether this actually worked out in the long run can be judged by glancing at the federal government now and seeing, is this actually the scrupulously limited government, limiting itself to its delegated powers that the framers envisioned?

18:40I think it's obvious enough. So what Jefferson's view was that the states created the federal government, they sent delegates to a constitutional convention, they approved the constitution, they ratified it state by state, so the constituent unit always was understood to be the state. Well, they have not, according to Jefferson, they've not created a Frankenstein's monster that gets to interpret the scope of its own powers and tell the states themselves what their own constitution means. If the Federal Government has the final word on the scope of its own powers, if the Federal Government gets to be the exclusive judge as to what powers were delegated to it and what not, and what the meaning of those words in Article 1, Section 8 is, then what's going to happen obviously is that the Federal Government will, given that no one can challenge its interpretation of the Constitution, will interpret that instrument more and more broadly so as to amass more power to the Center.

19:33So Jefferson's next step was to say, states created the federal government, they endowed it with certain limited powers, but if the federal government should go beyond the powers that were delegated, then the states have the right to interpret the Constitution for themselves and to judge that an infraction has taken place and to refuse to enforce the offending law, that is to nullify the offending law. It doesn't mean that they would be repealing the law, But they would simply be saying that insofar as their state is concerned, the law will not be enforced. Now here's how Jefferson words this in one of the passages from the Kentucky Resolutions of 1798. This is the crux of Jefferson's argument right here. He says,

20:30The 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 so ever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force. To this 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 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 parties having no common judge, each party has an equal right to judge of of itself, as well of infractions, as of the mode and measure of redress.

21:31That's a beautiful passage, it's a beautiful passage. I used to, and by the way, I'm not up here to make fun of my students because I like them, they're decent kids, they just, you know, it's mostly not their fault that they haven't been taught things, but I used to assign the Kentucky Resolutions of 1798. No one can understand this language, okay, so in a way, it sort of makes you think, are Are they trying deliberately to make us dumb so that we can't read Jefferson telling us here, hey, you have the right to nullify and whatever? Well, the next year, the Kentucky legislature, and by the way, these resolutions are passed by the Kentucky legislature. This was a common thing that in colonial times, like the Virginia Resolve against the Stamp Act, when you want to make a statement at the highest level of the state that indicates If those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained,

22:32an annihilation of the state governments and the creation upon their rulings of a de facto rule of law, fixed by that compact, by a total disregard to the special delegations of power therein contained. An annihilation of the state governments and the creation upon their rulings of a general, consolidated government will be the inevitable consequence. That the principle and construction contended for by sundry of the state legislatures, 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 would administer the government and not the Constitution would be the measure of their powers. The several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of the infraction, and a nullification by those sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy.

23:30All right, well, that's the Kentucky Resolutions of 1798. Now, Jefferson is portraying this course of action as the moderate course. I mean, today it's extremist and wacko. This was the moderate course. It was the middle ground between secession and submission. It was a way of telling his friends, who he thought some of his friends were too anxious to secede, But here is a way that we can stay in the Union and enjoy whatever benefits accrue to us from that and not have to give that up, but at the same time be able to resist and be able to resist usurpations of state powers. This is the moderate course. That's the same position that John C. Calhoun took in 1832-33 when some people in South Carolina were saying we need to secede over the tariffs.

24:20Calhoun said the moderate approach was nullification. There are some people, by the way, who believe in secession and do not believe in nullification. They think that nullification is just a crazy idea that can't work, but it does seem to be of a piece. The ideas of nullification and secession do seem to derive from the same conceptions of the Federal Union. Well, let's also look at the Virginia Resolutions of 1798, drafted by James Madison. James Madison, rightly or wrongly, is referred to as the father of the Constitution. Madison came to regret having written this and spent the rest of his career trying to explain that the Virginia Resolutions of 1798 did not actually mean what they obviously did mean.

25:09Partisan humor used to poke a lot of fun at the fact that Madison seemed to be changing his mind. There's a whole cottage industry of Madison admirers out there who write books showing that, no, Madison was perfectly consistent in his whole career. Well, if that's how you want to spend your career, you know, arguing that Madison is totally consistent, I mean, I guess it's one way to spend a career, but my friend Kevin Gutzman at Western Connecticut State University has argued very much to the contrary. But let's look at the Virginia resolutions. Madison said,

26:12What he's getting at there is that he already sees in the 1790s a trend whereby certain general phrases in the Constitution, such as the General Welfare Clause, for example, would be interpreted so broadly that the interpretation would permit the Federal Government to exercise powers really that were not dreamed of by the framers of the Constitution and what he's saying is that in Article I, Section 8, that lists the powers of the Congress. And if the federal government had actually been authorized to put into effect any measure that it thought would tend toward the general welfare, then why did they bother specifically enumerating the federal government's powers if they had whatever power would advance the general welfare?

26:58It seems it would render the specific listing of powers nougatory and absurd. Now Madison gets closer to the heart of the matter by saying, This assembly, speaking of Virginia, doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact, and that in the case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties thereto have the right and are in duty bound to interpose for arresting the progress of the evil and for maintaining within their respective limits the authorities, rights and liberties appertaining to them.

27:54This is really the phrase that is most cited out of the Virginia resolutions, that the states have the right and are in duty bound to interpose for arresting the progress of the evil, the evil being the usurped power, the usurpation of power, and for maintaining within their respective limits the authorities, rights and liberties appertaining to them. Now, there's been much written on the differences between the Kentucky resolutions of Jefferson and the Virginia resolutions of Madison. There's much that has been written to suggest that Madison is calling for a measure that is not as extreme as what Jefferson is calling for. Jefferson expressly calls for nullification, whereas with Madison we have simply the states are duty-bound to interpose. He tends to use the term interposition to, in effect, stand between the federal government and their people.

28:45Like Arthur Dent standing between the bulldozer and his home. There are some geeks in the room with me who recognize Hitchhiker's Guide to the Galaxy references. This is an interesting point that needs to be dwelled upon. I think some of this has to do with the fact that later, Madison's protests were so strong, that no, I never meant to imply that, that people have taken him at his word. Well, I guess he never meant to imply that. A better explanation for Madison's later second thoughts comes from Albert Taylor Bledsoe, who wrote an important book about secession and the rights of secession after the war between the states. And Bledsoe said that Madison seemed more anxious in his later years in preserving the union than in preserving the consistency of his own thoughts.

29:38So in later years, he wants to try to hold the union together in anything that would tend to have the states become more and more independent-minded, he wanted to discourage. But again, my friend Kevin Gutzman, who's written, I mean, he's been in the Journal of the Early Republic, he's been in Journal of Southern History, I mean, all the major journals on this point. He points out that scholars who try to claim for Madison a much more moderate ground than the radical Jefferson are really on very shaky ground because, for example, Jefferson had Ludwig had said that the states were the ultimate judges, both that a violation of the Constitution has occurred as well as the mode and measure of redress, how we address this violation. And some historians have denied that Madison took that view.

30:25Well, Gutzman says if Madison really did not believe that the state was the ultimate judge of both the violation and the mode of redress, he certainly did not make that clear in either the resolutions themselves or the Publius letters. A careful reading of them does not leave the impression that Virginia would willingly have submitted to continued enforcement of the acts, even in the event that no other state agreed with it. Again, from another article of Gutzman, one of Madison's most notable tactical adjustments, as the years had gone on, had been his campaign as a retired former president to be cloud the events of 1798 by denying they had meant what they plainly had meant. and then finally from his article in the Journal of the Early Republic the distinction so often drawn between Jefferson's strident and Madison's moderate tone seems strained there is no difference between null, void and of no force or effect and invalidity between nullifying a statute, Jefferson's word, on the one hand

31:27and interposing to prevent its enforcement on the other In fact, these are the same ideas.

31:39Now, here's a guy you've never heard of, most people. But that's okay, because now we're going to resurrect this poor guy. I want to talk briefly in this connection of a figure who is totally forgotten, and yet he's a great constitutional legal thinker named Abel Upsher, He was a Virginia legal thinker who served brief terms as Secretary of the Navy in the early 1840s and as Secretary of State as well. Hoppcher wrote, he wrote a pamphlet in 1833, and I'll get to a minute why 1833, this is 1798 after all, but he wrote a pamphlet in 1833, an exposition of the Virginia resolutions of 1798.

32:26It's one of these things that, you know, in the 19th century when you write a pamphlet or you write a book, you know, the title is a paragraph long, so the title goes on the next three pages of the title of the thing, He's going to look specifically at the Virginia resolutions of Madison and prove, even in the 19th century, prove that they did mean what Jefferson meant in the Kentucky resolutions. Now, Upshur is a fascinating figure whose work needs to be collected into a volume, and I intended to do that at one point. I have a bunch of his essays that are from obscure journals in my file cabinet. in the Federal Cabinet. He had a great book that I'll be talking about probably in the second lecture today that was a line by line reputation of Joseph Story's commentaries on the Constitution.

33:14Upshaw wrote a book in 1840, a brief inquiry into the nature of our federal government, and it just takes story apart, and yet everybody's heard of story, whereas Upshaw's book, you know,

33:5623 pamphlet. How on earth did I find that? I ripped it off from a museum. No, I made that up. That's just not true. I just totally made that up. No, actually, one of the beautiful things about being at a university with a great library is the discoveries you make just standing around in the stacks. I mean, there's no, it's no substitute to use interlibrary loan to get books, because then you never find all the seven books around the one you I'm sorry, last night I remember hearing Homer Simpson say that he has a backyard that makes his front yard look like an idiot. That's a funny way of phrasing that, so it's stayed in my head. But in snooping around in the stacks, I found there's a box of old pamphlets. And sure enough, there's this pamphlet by Upshur. Of course, it hasn't been touched in years and years.

34:44And so I probably wasn't supposed to photocopy, because since that probably wasn't the case, I probably wasn't supposed to photocopy it because since that probably accelerated the decay. So I really shouldn't be saying this publicly, but I did photocopy it because I figured, look, I'll preserve the thing. I'll get the thing published, for heaven's sake. We'll publish this thing. And then years later, I haven't done a darn thing on that front. But I'm going to share with you some things that Upshur said. I used to make this part of my assignment in my Foundations of American History course where the paper assignment is I give you Upshur's work, Upshur's pamphlet, And then I give you some speeches by Daniel Webster, who takes the opposite view from Upshire. And then I want you to assess this. And what are they saying, and what is the crux of their disagreement? And there's a beautiful assignment, and anybody who is looking for an American History Science, it's a beautiful assignment, because it's totally non-plagiarizable.

35:33Because since this pamphlet hasn't been reprinted anywhere, no one's written anything on it. So they're going to look all over the internet for Upshire, and they're saying, Oh, man, I can't find this anywhere. No, you can't. I made it that way. All right, anyway, Upshur says this. He says, In these resolutions, Virginia Resolutions of 1798, the following propositions are distinctly affirmed. And he lists five propositions. That the Constitution of the United States is a compact between the states as such. That the government established by that compact possesses no power whatever, Accept what the plain sense and intention of that compact gives to it. That every act done by that government, not plainly within the limits of its powers, is void.

36:20That each state has a right to say whether an act done by that government is plainly within the limits of its powers or not. And finally, that the states are not bound to submit to, but may resist, Any act of that government which it shall so decide to be beyond the limits of its powers. Now the question is, in what mode is this resistance to be applied? I mean, okay, so he's shown us that the Virginia resolutions are calling for resistance, but what kind of resistance? Well, the context and the wording of the resolution make clear that Madison envisions a resistance that will preserve the Union unimpaired, but at the same time put down the usurped power. And it must be undertaken, the interposition of the state must be undertaken in such a way as to arrest the progress of the evil.

37:13Now, Upshur says, this is very significant, he says, It is to be remarked that we have here a distinct declaration that there is within the Constitution of the United States some principle by which the encroachments and usurpations of the Federal Government may be resisted. I say within the Constitution and not extra-constitutional and revolutionary, which is the argument that you hear today. So then Upshur goes and looks at all the different types of resistance other than nullification that could exist and shows that every single one of them falls short of the criteria laid out by Madison. He says, for example, petition and official remonstrances and protests. He says, this is not resistance at all. He says, petition is a simple appeal for mercy and forbearance.

38:00Petition and protests affirm a right and threaten the enforcement of it, but they do not in themselves enforce it and therefore are not resistance. There is, in addition, the appeal to arms, violent resistance, but Hoppe believes this is only for an extreme case, and certainly, if the usurpations of the Federal Government are to be met only by an appeal to arms every single time, Well, number one, either we'll just never have peace or that will be viewed as such an extreme measure that no one will ever resist because, you know, most of the time people would just prefer to continue living their lives and not be bothered by this type of turmoil. Another possibility is repeal of the unconstitutional law by Congress to go to try to get the unconstitutional law repealed.

38:48But, Upshur says it's not likely this is going to work. It's not likely that the usurper is either going to acknowledge the usurpation or lay down willingly the usurped power. And he says you must remember too that the usurper in the present case, he's talking about, I'll tell you, he's talking about the tariffs in 1833. He says you must remember the usurper in the present case is a majority of the people, usurping upon the rights of the minority. In the history of the tariff laws, ought to convince you how un-apt such usurpers are to give way. This remedy, therefore, would be of little value in practice. Besides, it is in principle a simple appeal to the wrongdoer, and is therefore no more a mode of resistance than the right of petition. Everything is left at last to the will and discretion of the usurping power.

39:36I should just mention parenthetically that in 1833, Upshur is talking about nullification in the context of South Carolina's nullification of what they consider to be unconstitutional federal tariff laws. And they are appealing to the Virginia-Kentucky Resolutions of 1798 in so doing, in nullifying federal tariff laws. And so Upshur, in that context, is talking about those resolutions. Another possible mode of resistance is to amend the Constitution. But again, for Upshur, this misses the point because the problem, he would say, is not with the Constitution itself. What we want to do is preserve the Constitution unimpaired as it is. The problem is we've had a breach of that instrument. So an amendment to the Constitution misses the whole point. And then finally, secession.

40:22We say secession, whatever the legality of it, the point is it does not seem to meet the conditions called for by Madison because it is not a mode of resistance that preserves the Union unimpaired. Instead, it is a running away of the oppressor. And far from arresting the progress of the evil, by removing a resisting state, it's actually enabling the evil to continue. It removes all restraint from the wrongdoer. So, the only option left, according to Upshur, is nullification. Madison's language and words do not admit of any other construction, regardless of what he said later in his life. Now, a final point from Upshur is that nullification does not proceed upon any supposed right of the state to repeal a constitutional law, but upon the right of the state to declare that an unconstitutional law really is so, and to refuse obedience to it for that reason.

41:22He says, remember that a law beyond the constitution is no law at all, and there is no right anywhere to enforce it. A state which refuses to submit to such a pretended law is strictly within the Union because she is in strict obedience to the Constitution. Now, the other states responded to the Virginia and Kentucky resolutions, at least some of them did. Most of the southern states did not, but the northern states, a number of them did, and all unfavorably. Massachusetts issued an official report sharply condemning these ideas saying they're unheard of, they're novelties, they have no place in the American constitutional tradition, so on and so forth.

42:07Now, this is a point that we'll take up probably tomorrow morning because what we're going to see is that those states themselves that were so vocal in 1798 about how crazy these ideas were and no one could possibly use them Within 10 years, they were using some of the same language that Virginia and Kentucky used in 1798. So you get the impression that at least some of the reason they were against the Virginia and Kentucky resolutions is that they liked the Alien and Sedition Acts. They were hotbeds of federalism there. They liked the legislation. They didn't like this proposed means of resisting it. One of the points that's consistently made in what we've just looked at and in the discussion of nullification is the idea that there is no common judge that can adjudicate disputes between the states and the federal government.

43:00And to say that the Supreme Court is a common judge is to miss the point entirely. Because as Jefferson would say, the Supreme Court is part of the federal government. Jefferson had made this point all along, you can pursue this in, there's a book from the, I believe the early 90s, by Quirk and DeGrasse, in which he says that the federal government is in a dispute between the states and the federal government. It would be rendering judgment in a case to which it itself is a party. So in no way can that be considered legitimate. Jefferson had made this point all along, you can pursue this in, There's a book from, I believe, the early 90s by Quirk and Bridwell, if I remember the authors correctly, called Judicial Dictatorship, published by Transaction.

43:47They point out, as obviously many authors written on Jefferson's thought have pointed out, Jefferson does not believe in judicial review. He doesn't believe the Supreme Court ought to have a monopolistic privilege on interpreting the Constitution, Because then that simply means that they're running the country. Because if they get to interpret it and they have the final authoritative word, well, then they dictate, they know if they get to say what the Constitution means, then they're running the country. And it's very dangerous to entrust so few people with that type of power. So he doesn't like that. He believes in something called concurrent review, whereby all three branches of the federal government have a responsibility to maintain constitutionality. So that even if the Supreme Court upholds something, But the president believes it's unconstitutional.

44:35He doesn't have to bow down before the Supreme Court and say, well, I guess I have to just get rid of my scruples about this. The Supreme Court upheld it. He has a responsibility not to sign it. And likewise, the Congress should not pass something they believe to be unconstitutional. So that was Jefferson's take. He does not believe there's a common judge ruling over that can adjudicate disputes between the states and the federal government. The Supreme Court does not count. It would be as if we said, I'm having a dispute with you. How are we going to resolve it? And I said, well, you know, my brother Sal will adjudicate it. I mean, like, you wouldn't agree to that because obviously Sal is going to have a difficult time being impartial. And in such cases, more and more, the federal government will rule in favor of itself.

45:23Well, in 1799, 1780, 1799, 1800, it was drafted in late 1799 and then first presented on January 7th, 1800, we have what's sometimes called Madison's Report of 1800. And Madison, in effect, what he's written here is a reply to the replies. It's a reply to the other states, to the extent that any of them acknowledge the Virginia-Kentucky resolutions, they sometimes, as we saw in the case of Massachusetts, issued statements of their own, where now Virginia is going to reply to these replies and try to clarify its position. And in that report, Madison says this,

46:29In the last resort, whether the compact made by them be violated, and consequently, that as the parties to it, they must decide in the last resort such questions as may be of sufficient magnitude to require their interposition. From this view of the resolution, it would seem inconceivable that it can incur any just disapprobation from those who, laying aside all momentary impressions and recollecting the genuine source and object of the Federal Constitution shall candidly and accurately interpret the meaning of the Virginia General Assembly. If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it in interposing, even so far as to avert the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, to it, there would be an end of all relief from usurped power, and a direct subversion of the rights specified or recognized under all the state constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared.

47:40Now as I said, the reaction from the other states largely negative, we get this Virginia Report replying to those. Now, there are a number of objections to nullification that are raised by these other states and by people to this day. I don't want to make this whole series totally self-referential, but chapter four of my politically incorrect guide to American history deals with the principles of 98, which have just totally fallen down the memory hole. That chapter is sympathetic to these ideas, and you would think I had called for the dismembering of children, given the response I got to it. These are ideas that were developed by Thomas Jefferson and what I found is that the critics never wanted to mention Jefferson's name because Jefferson's really an admired person.

48:27If you mention that Jefferson came up with these ideas, well, that might make them seem respectable so we can't ever mention it. They're just ideas that just suddenly occurred in American history. They had no source. They were out there or Calhoun came up with them or whatever. You have to keep saying, no, Jefferson came up with these ideas. And I suppose when you start saying that, they'll just start saying, well, Jefferson held slaves too, and then they'll just change the subject. But it was, these are Jefferson's ideas. But anyway, here are some objections that you get to nullification. And as I say, the objections that I got in the present tended not to acknowledge the Jeffersonian origin of these ideas. Basically, they're as follows.

49:12And when I use shorthand, I say the Principles of 98, that's a term that refers to the principles that were laid out in the Virginia and Kentucky Resolution of 1798. The Federal Government is limited, it's got just the powers delegated to it, the State's reserve, not only the remainder of those powers, but also the right to interpret the Constitution such that if they feel the Federal Government has violated the Constitution and usurped one of their powers, they can resist through nullification. That's the Principles of 98. And you could just say Principles of 98, people would know what that meant. Well, one argument, this is one that you hear today, is that, well, wouldn't that mean that some states would be, you know, following some laws, and some states would be following other laws, or wouldn't that just be chaotic? Well, yes and no, it would mean that. The way it was envisioned basically was as follows, that you've got a law that the states claim is unconstitutional.

50:02basically was as follows, that you've got a law that the states claim is unconstitutional, and then what they're claiming is that since it's unconstitutional, we're not going to enforce it, and what they would do is, Calhoun's understanding was that the state would call a special state nullification convention, because as you can read in Gordon Wood and others, it was thought in early American history that the people of the states expressed the They use their highest sovereign voice through the instrument of a special convention. That's why they use special conventions to ratify the Constitution. It's the grave matter, so we use this highest instrument of the sovereignty of the people to accomplish it. And likewise, nullification is a very grave matter.

50:49And so likewise we appeal to that same sovereign source. And of course when the southern states secede from the Union, what do they do? Special secession convention. They did the ratification of the Constitution, in effect, in reverse. If you have this convention, you decide to nullify or not, and if a state does in fact vote that way, to nullify whatever the law is, then the understanding is that as of that moment, as far as that state is concerned, the law is to be considered as suspended. And this also helps to alert the other states, if they've been snoozing, to wake them up and say, hey, this is a terrible law, violates the Constitution, pay attention to it. If three-quarters of the states should, in fact, amend the Constitution so as expressly to give the Federal Government the disputed power, so that there is no longer any question about an ambiguity that the nullifying state can appeal to, if they expressly give this disputed power in express language to the Federal Government,

51:47at that point, the recalcitrant state that's nullifying it, or states, would be required, in effect, they'd be basically asked, The State would ask, can you live with this? Can you live with this law, or would you prefer to separate? It's a seed from the Union. So ultimately, if push came to shove, and this were a very, very popular law, that's how it would be resolved. Ultimately, the State would have to either enforce it or withdraw. A similar objection, though, is that it does seem like this would create chaos if the States could nullify Federal laws. In a way, this is kind of a value judgment, because there's always some kind of chaos in the United States. It depends on what kind of chaos you like. Now, James Kilpatrick, who wrote this book called The Sovereign States, it's out of print, you should get it.

52:37And then he later repudiated the book, because it's typical. It should be one of Rothbard's laws, is that people who, as time goes on, they become more influential in the establishment, He repudiated this book, which made me think it must be great. He's repudiating it because people hate it, it must be wonderful, it's a great book. But Kilpatrick says that, all right, if you're going to say that it's chaotic for there to be nullification, well, understand that there is also a kind of chaos involved when the Federal Government has the power, and in effect is enabled, to pass unconstitutional laws. and in effect is enabled to pass unconstitutional laws. I mean, that's a kind of chaos where there really is no fundamental law if the federal government can just, without any penalty, get in the habit and become habituated to passing unconstitutional laws.

53:30That's a kind of disorder as well. Which one is the more dangerous? Okay, which one is the more dangerous is a good question. Now, there's also a value judgment here from a point of view of libertarians. I mean, my view would be that suppose today we announce that, You know, nullification is operative once again, and the states started nullifying, let's say just at random, every other federal law. How could this be bad, right? Would anybody object to this? Would our lives be ruined by this? Like every other law, it doesn't matter what it is, just at random. Every other law, they nullified it. You know, I see no problem with it. But the fact is, though, that it actually would probably not lead to some of these wild scenarios that people have suggested it would. Consider this fact, secession certainly is a more extreme remedy than mere nullification.

54:22I think it's demonstrable that from the late 18th through the 19th century, through the end of the war between the states, I do think you can demonstrate that probably a consensus of opinion in the US was that a state does retain a right of secession in an emergency situation. I think we can base that on the fact that New England threatened to secede several times, a lot of important figures insisted on the right of secession, and so on and so forth. I think we can take that position. And we have abolitionists who appeal to the idea of secession, like William Lloyd Garrison. We have pro-slavery people appealing to secession and supporting it. Free traders supporting it. You've got all different people supporting the idea of secession.

55:10And yet, the country was not exactly overwhelmed by actual secessions in early American history. Because most people, I think, do not have much desire to be in a state of crisis for frivolous reasons. And nullification and secession are very dramatic steps. But there can be no doubt that the ever present threat of secession or nullification does have the salutary effect of restraining the federal government's exercise of power. Let's see, I'm going to skip. I've already talked. There's no need to dwell too much on Madison's report. Now, Abel Uxher again, the great Virginian legal thinker, deals with some of these objections in his great treatment of the subject, and he says this.

55:58He says, if the states no longer wish to remain in union, they will, of course, separate. But if they are really desirous to preserve the Union, their own interest affords a sufficient pledge that they will not endanger it by throwing themselves upon their reserved rights, except in extreme cases, which require it. The government of the United States is the mere agent of the states for specified purposes, and it is inconceivable that the states who appointed that agent for their own use and advantage would, without cause, so embarrass its action as to render its agency of no value. And then he goes on. If the states may abuse their reserved rights in the manner contemplated by the president, If the states may abuse their reserved rights in this way, the Federal Government, on the other hand, may abuse its delegated rights.

56:54There is danger from both sides, and as we are compelled to confide in the one or the other, we have only to inquire which is most worthy of our confidence. It is much more probable, says Upsher, that the Federal Government will abuse its power than that the states will abuse theirs. And if we suppose a case of actual abuse on either hand, it will not be difficult to decide which is the greater evil. If a state should abuse its right of interposition by arresting the operation of a constitutional law, The worst that could come of it would be to suspend the operation of the law for a time, as to that state, while it would have all its effects within the other states. This would certainly be unjust, he says, but in most cases would be attended with very little practical evil.

57:44Besides, according to the doctrine for which I am contending, this evil would be temporary only. It must cease in some way or other as soon as the other states act upon the subject. I acknowledge, however, that it is at best an evil, but it is an evil inseparable from our system and one which cannot be avoided except by submitting to a greater evil. Okay, and finally, in terms of objections, I heard this one raised, this was raised by somebody, I guess I'd written an article, or basically a book review of a great book by Bill Watkins, and somebody posted it on Free Republic, no snickering people, and somebody had said, well, this I don't think that's a stupid objection, like self-evidently idiotic objection, but it begs the question.

58:43By the way, this is one of my pet peeves. Nobody understands that the phrase begs the question. It doesn't mean, like, I'm begging to ask the question, or dying to ask the question, I'm begging you to ask. It means that it just glides over the question. It just glides over the question. ... it means that it just glides over the question. It just in effect disregards the fundamental matter at stake. First, let's read the Supremacy Clause, then I'll try to justify my position that nullification is not incompatible with the Supremacy Clause. From Article 6 of the Constitution, we read this. This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be supreme law of the land and the judges in every state shall be bound thereby So the argument would be that if the Constitution is the supreme law of the land, and you have one state nullifying a law that is duly promulgated, then aren't you in fact violating the Supremacy Clause?

59:48Well the whole point is, does the law itself conform to the Constitution? That's the question. This is the question. This is saying the Constitution and the laws of the United States which shall be made in pursuance thereof. Well, what if the law is not in pursuance thereof? Then the Supremacy Clause does not seem to apply here. But more than that, the whole question, I mean, you can agree with that statement. I mean, whether you like the Constitution or not, it's possible you could agree with that statement. But then say the whole question is, which party gets to decide which powers have been delegated to the Federal Government? And according to the Nullification Theorists, the states have to be able to have a voice in deciding that. Okay, this does not really touch the crux of the issue. This simply says the Constitution is the supreme law.

1:00:35Fine, but what about the interpretation of that document? And what about who gets to decide what is the extent of the delegated powers? That is not addressed in the Supremacy Clause. Now, I mentioned briefly a book by Bill Watkins. William Watkins has a book called Reclaiming the American Revolution and the subtitle is The Kentucky and Virginia Resolutions and Their Legacy and it's not a terribly long book but it's a great book, it's very important. Unfortunately it's one of these books that it's published by Paul Grave McMillan, wonderful mainstream press and it's excellent for him that he published with them Sometimes they publish hardcover editions that, you know, it's $40, and you think, ugh, $40, I mean, you're killing me.

1:01:24I think Amazon has got it at some kind of a discount, but one way or another you should look at it, you should get it, because it's very important. And here's the significant thing, how many books in the past 100 years have been written on the Virginia-Kentucky resolutions of 1798? Just Watkins' book, last year, that's it, okay, absolute silence. And you know, I devote a chapter to it and I'm like the great Satan, you know, I should be writing more about, you know, what about this or that multicultural group and their contributions. I mean, every book in existence talks about that. Nobody talks about this and yet it's absolutely fundamental to understanding American history and they don't know it. And as I said, I think the stuff tomorrow and possibly if I get to it this afternoon, I think you'll agree with me. This is very, very important material.

1:02:10Well, the last point that I'm going to make today, or the series of points, involves where these ideas came from. They didn't just come fully formed out of Jefferson's head. And here's stuff that is really, I think, sort of cutting edge in terms of the scholarship on this. Because although there haven't been terribly many books on it, there have been some excellent journal articles. And here I must again defer to my friend Kevin Gutzman, and I will give you the citations for this, or anybody listening can write to me and I'll email them to you. But Gutzman's got this book coming out, I don't know what the date is, but sometime in the future from University of Virginia Press. He's absolutely excellent. I mean, I think he's one of the most underrated historians there is.

1:02:58He's been making tremendous discoveries and tremendous, I think he's been responsible for a sort of interpretive revolution of all this material. What Gutzman has argued in a series of journal articles, most recently I think it was the Journal of Politics, if I remember correctly, He's arguing that you can actually date these ideas, or at least the germ of these ideas, to the Virginia Ratifying Convention. In 1788, Virginia is having their convention, as the other states were, to decide whether or not they're going to ratify the Constitution. Well, at that convention, Patrick Henry, who was, of course, the great hero of the Stamp Act crisis, expressed his fear that, for example, the necessary and proper clause of the Constitution, which, of course, said the Federal Government would have all powers necessary and proper to carry into effect the powers granted in Article 1, Section 8.

1:03:57He was afraid that this clause 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, of course, justify practically any action it might take by some strained reference to the general welfare. Well, here's the significance. At that convention, Edmund Randolph stands up. Edmund Randolph, Virginia governor, he'd been attorney general for Virginia, he becomes the first U.S. attorney general. General, Randolph, who was really the leading Federalist that is pro-Constitution speaker at the convention, got up and said that Patrick Henry's fears were unfounded. He said those phrases could not have the expansive meaning that Henry attached to them, because according to Randolph, the only powers possessed by the Federal Government would be those expressly conceded to it by the states. And he used the word expressly. And that was the understanding

1:05:05He said, this is Randolph,

1:05:26So, therefore you can't, you won't be able to just take these open-ended phrases and make them into whatever you like, because the federal government has only those powers that are expressly granted and you won't be able to just take phrases and start growing interpretations out of them. Now, so that was the nature of Randolph's response. And then he went on to say this, If I did believe with the honorable gentleman that all power not expressly retained was given up by the people, I would detest this government. So in other words, if I believe the opposite, that unless the people expressly retain a power, the presumption is that the government has it, well, I would detest this government. But I never thought so, nor do I know.

1:06:12And now here's the crux, because Randolph is on a committee of five people whose task it is to draft an instrument of ratification of the Constitution, that is the document that will accompany their ratification. It's Randolph's task and that of George Nicholas, we'll talk about in a minute, John Randolph's The purpose on this committee, James Madison's on this committee, the purpose is to draft an instrument of ratification so that as they ratify, Virginia will be declaring for everyone to see the understanding that they put on the Constitution and their understanding about what they are getting themselves into by doing this. Randolph is talking about this when he says if in the ratification, so in the instrument of ratification, We put words to this purpose, that all authority not given is retained by the people, and may be resumed when perverted to their oppression, and that no right can be cancelled, abridged, or restrained by the Congress or any officer of the United States.

1:07:13I say if we do this, I conceive that as this style of ratification would manifest the principles on which Virginia adopted it, we should be at liberty to consider, as a violation of the Constitution, every exercise of a power not expressly delegated therein. I see no objection to this. It is demonstrably clear to me that rights not given are retained and that liberty of religion and other rights are secure. So this is the understanding that Virginians are going to have when they ratify the Constitution. That it's a limited government and that it has only those powers expressly delegated to it. Now another member of the committee was George Nicholas. Now these figures, they're significant people. George Nicholas is going to become the first Attorney General of the new state of Kentucky.

1:08:00Edmund Randolph had credentials a mile long. Their opinions mean something and they mean all the more given that they're on the committee Nicholas told the convention that if Virginia did ratify the Constitution, it would ratify it on the basis of its understanding of that document. He said this, 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, 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 ascended to it would not be binding on the other twelve.

1:08:55In like manner, these conditions will be binding on Congress. They can exercise no power that is not expressly granted them. Now, Nicholas was understood to be a spokesman for Madison, and he explains the Constitution like this. Randolph believes that implicitly the Constitution holds this. Nicholas is saying, and as does Randolph later, that our ratification instrument will make it as clear as day, render it totally explicit, that we are ratifying the Constitution as a kind of a league among states. And we reserve rights to ourselves, to judge, and in fact even to recall powers that we have delegated.

1:09:40So what Gutzman's argument is that in the Virginia ratifying convention they draft an instrument of ratification that makes clear the nature of the union as Virginia understands it, the terms on which they're entering, that they understand this not as being absorbed into one big aggregated people, but as a league of states. They say this expressly and the people who are saying this are Federalists. These are supporters of the Constitution. These aren't anti-Federalist people who are suspicious of the Constitution. This is Edmund Randolph, the very, very prominent Federalist at the ratifying convention. So, in fact, these ideas are deriving from them. Now, within months of the new Constitution coming into effect, already there are Virginians who are concerned about the direction the Federal Government is taking.

1:10:36They don't like Hamilton's program, they don't like his assumption of the state debts, which it's not clear that constitutionally he has the authority to do that, etc. And in 1790, Patrick Henry drafted a resolution in Virginia that expressed the radical state's rights position that was asserted at the ratifying convention, that was promised to the delegates there by Randolph, would be the understanding. This was renewed and reinforced in the resolution that was adopted by the Virginia legislature and it's taken right out of the ratifying convention. Henry says that, remember, we entered this union on the understanding you have only the powers expressly delegated to you and I don't see that you have the power to do the things, the economic things you've started to do.

1:11:29Now, here's how Gutzman concludes, he says the pedigree of the principles of 98 can be traced through James Madison and Thomas Jefferson in 1798 to Patrick Henry in this resolution and ultimately to Edmund Randolph. It was he who paved the road to Virginia ratification by assuring his fellow members of the Virginia elite that the Constitution they were being asked to ratify in the summer of 1788 would have very limited significance, that it was more another league of sovereign states The idea, again, is that the ratification of the Constitution of Virginia would also be accompanied by a statement of what that convention understood to be a statement of what ratification meant, and it would be a binding statement.

1:12:25Okay, let's see. Oh, and incidentally, we also note in the 1790s, I also make note of John Taylor, who's a great political thinker who's, the running joke about him was that he wrote in such an obscure manner and difficult to follow that John Randolph used to say John Taylor needs to be translated into English because you can't follow anything, it's like reading a modern philosophical journal or something with apologies to Kevin, Kevin Vallier out here. Taylor was a friend of Jefferson's, who wrote a number of really important, one of his books at least, is published, Tyranny Unmasked, published by Liberty Fund, but in the 1790s, Taylor began to argue that to protect the states from the usurpations of the federal government, the state legislatures need to protect them, need, in effect, to interpret the Constitution. So, I mean, in effect, He doesn't come up with these special state convention ideas, but he's moving in that direction.

1:13:32He's proposing that the states should act in a way and perform functions that are in the tradition of what we now think the Supreme Court should be doing. Well, finally, Thomas Jefferson, later on in his career, said, When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separate. Now, Jefferson, in a statement like that, makes clear that it is not enough simply to have three branches of government. You know, hey, we've got the... I get this all the time on exams, that how is the federal government kept limited?

1:14:22And I get told, well, we've separated the executive, legislative and judicial branches, and so they can't encroach upon each other's prerogatives. All right. Okay. That's been done. But so what? I mean, why would that keep the government limited? I mean, it might mean that... I mean, I understand the Montesquieu position on this, that I understand why it makes sense that you don't want the same person drafting the law as enforcing it or drafting it as interpreting it because then you just interpret it so as to exclude yourself. I understand that. There's nothing about that that inherently keeps the federal government limited. I mean, what happens if the three branches, as Jefferson said was happening in 1825, 1925. He said the three branches are just ganging up on the American people and they're ganging up on the states. What's to stop that? Well, that shows that what you need are checks by the states. The states need to have some way in a corporate manner, not just as a bunch

1:15:15of scattered individuals who haven't got a chance against the federal government, but in their capacity as states, they have to have some way to keep federal power in check or otherwise you are going to get exactly what Jefferson warned about, which is a government where all powers are adrift to the center. That was what Jefferson was trying to warn about and he proposed this idea of nullification as the only way that he could see and that followers in the tradition could see as a way to keep the federal government in check. If that's even possible, but at least to try or at least hold it off as long as possible it seems that some form of nullification is necessary. Yet today, even to raise the issue is to be called all kinds of names and, you know, accused of this and that and being an extremist or whatever.

1:16:04But that, I think, more than anything else, tells us about our present political condition. Okay, well, I'll be happy to take some questions then at this point. Yes, I'm going to put my glasses back on so you're not just a bunch of blurs. Do you think that Madison's thinking sort of went in an art from when he wrote The Federalist to The Principles of 1998 and then later on sort of going back to where he was in The Federalist because he talked about that the government would be both national and federal which really doesn't make a lot of sense, but do you think that really squares what he wrote in The Virginian Way?

1:16:48The question involves the trajectory of Madison's thought. It doesn't seem that he moves in an arc. He's sort of a nationalist around the time of the convention. At one point at the convention, he even said that the Congress, the Federal Congress, should have a veto over state laws, which was totally rejected. But then you get the Virginia resolutions, where he's a big decentralist. and then later in his life he's he's pro-centralist again and does it seem like he moves in a kind of an arc and it does seem that way to me as I say I know there are people who try to square this circle I remember when I was getting ready for my general exams in grad school I read this book by Lance Banning on Madison one of the great authorities on Madison called the sacred fire of liberty and he tries to make a strained argument there is no inconsistency in Madison at all that there are just different he has the same he just had different

1:17:47I mean, to me, since I have no particular dog in this hunt one way or the other, if it turns out that Madison really is secretly consistent, but you just need to be some kind of a cryptographer to figure it out, that's fine with me, I mean, it doesn't matter to me, I could be wrong on this, but it is interesting, though, that Madison goes also on his interpretation of the Constitution, he's against the National Bank, then he's in favor of the National Bank, because, you know, maybe it'll, you know, because of the feebleness of the National Bank, and then he's in favor of the National Bank, and then he's in favor of the National Bank, and then he's in favor of the National Bank, and then he's in favor of the National Bank, During the war of 1812, you start thinking, boy, national bank is a wonderful thing now, you start thinking, because the New England banks won't lend us any money, and so he suddenly becomes in favor of the bank,

1:18:29but then before he leaves, he vetoes the bonus bill, which would have applied federal monies to road and canal building, on extremely strict constructionist grounds, on the same grounds that he once rejected the bank. He says that you can't appeal to the general welfare clause here because then that would mean that there was no point in listing the specific powers of the federal government if it could do anything for the general welfare. Roads and canals might be for the general welfare but in that case you have to amend the constitution. So that's why Madison's not my favorite of these guys. I'm rather inclined more in Jefferson's direction, I guess, obviously. Yes, Jason? Do you attribute Madison's backpedaling on the Virginia resolutions later on to the fact that his guys were in power?

1:19:40Often times secession arguments are made from a philosophy of natural rights, where people are appealing to some sort of broader metaphysical apparatus in order to justify their traditions, and I wonder if nullification was seen in a similar light, or whether it was seen as more conventional, like, can you make appeals to common law, or whether there is a tradition of this going back, so, is it more like a legal code of conduct? Is this the same kind of radicalism that we see in arguments for secession? Can you tell me?

1:20:40People who are Straussians, I have to use this as a perfect example, will say that there's no constitutional right to secede. All there is is a natural right to have a revolution, to overthrow the government. But there's nothing that, within the law, permits secession, and that it would be absurd to say so. Whereas the Southern Confederacy and other people would say that there is a constitutional right. We're not just appealing to abstract principles, as useful as abstract principles are, but we also have legal rights, and they appeal to the 10th Amendment. We never delegated any power to suppress secession, so therefore it's not a power the federal government has. They can't suppress it, so we have to be allowed to secede. So as far as nullification goes, it seems to me that by and large they are making a conventional type argument, in terms that they're not saying...

1:21:35In other words, for example, what we just looked at here, Upshur, in his pamphlet, says that this is a mode of redress that he conceives of as being under the Constitution, not being extra constitutional or a revolutionary right. And given that you can actually trace out a lineage of thought, given that this lineage of thought, that the states have all these residuary powers and they have this right of judging, and that goes all the way back to the Virginia ratifying convention, You can see the development of a line of thought that is sort of legalistic. It says, these are the terms on which we ratified the Constitution. This is the understanding we were given of that document. And nullification just develops from the understanding that we were given at that time. I think there's a desire to appeal to law as much as possible because opponents of nullification were trying to make it seem like just an abstract right that has no basis in anything specific and written down.

1:22:32And at that time there's a real desire to make arguments from strict historical prescription and say, you know, it comes from this, it comes from that. I think that's my thing. So, I mean, I think that is really basically the way it comes. And on the secession point, by the way, that's why arguably the southern states at the time of the war, and the War Between the States arguably have a better legal right to secede, a better claim to secede than the colonies did to withdraw from the British Empire because the colonies had, I mean there was no legal tradition where they could appeal to, oh we have the right to withdraw, that was entirely a natural rights position that you've encroached on our powers and it's terrible and we're getting out of here. Whereas with the southern states, they have that, they can fall back on that, but they can also make, And whether you accept it or not, the fact is they can at least make a plausible argument that is based legally.

1:23:32And I'm sorry, by the way, my tendency is to pace back and forth, so I don't know if I'm jumping out of frame. Okay, that's good. Okay, any other? Yes, sir? You mentioned just now about the argument about the colonies. I remember that Virginia took a different argument when they claimed that they recognized Charles as King of England before England did, Charles King of Virginia. And they said that they have the rights, because they have dominion status. Yeah, that's true. Yeah, that's actually true. And it's interesting that Virginia actually declared independence. They feel that they declared independence in June 1776. So, you know, sort of like yawn when July 2nd and then July 4th comes along. Yeah, that's true. I mean, a useful document to read on how Virginia conceived of itself, is, and which I think also in some way is like kinship, there's a kinship with the ideas I've looked at here, is by Richard Bland, wrote a document, 1765, that naturally now with the cameras on everything, I can't think of the name of it, but I'll tell you the beginning of next time, where he fleshes all this out in a lot of detail.

1:24:41If the Constitution is of no authority, like I said, the tenor spooner would say, and I'm talking about a contract, then is there any means of really going to a legal tradition rather than just natural lives of no authority?

1:25:11in the line of argument, which I'll try to explain, then, you know, is there much value in trying to appeal to a historical tradition that's based in that very government? And, you know, ought we not simply to make natural rights-based arguments and say, to heck with all this? Well, what Spooner argued in his No Treason was that given that unanimous consent in politics is basically impossible. So when you have contract theories of government, like John Locke comes up with, that try to derive political obligation from the idea of a tacit consent, that, no, we didn't all sign a document, or I didn't expressly say, here, I'm delegating this authority to that institution. Given that that has not happened and is not liable to happen, on what ground can we base political obligation?

1:25:58And not wanting to say, well, we can't, people like Locke would come up with the idea of tacit consent. Well, the fact that you're standing there and you're not leaving implies that you're tacitly consenting to it. and that sort of thing developed and Spooner just shot, just blew this right out of the water and said that, you know, no other, there's no other aspect of human relations in which this would be considered legitimate where it's just implied that I exceed to something because I'm standing there or whatever. If I haven't given my consent to it, then I don't see how it can legitimately have authority over me and if it doesn't have a unanimous authority, then I don't see how you can legitimately appeal to it. Well, I mean, you know, you have to say there's a certain logical appeal to that argument. My point would simply be that a lot of people are not going to accept that line of thinking.

1:26:43That's just a fact. A lot of people are not going to accept that line of thinking. So it is useful when your historical tradition happens to be one in favor of liberty, to appeal to it and show that you are not doing something that's just entirely theoretical and removed from the traditions of your country, but to show that it's coming from the very heart of that tradition. I think it's an additional series of arguments in your arsenal. in our arsenal. And given how uphill the battle is, I think the more arguments we have in our arsenal, the better. Are we out of time? Okay, we're out, so thanks very much.