This essay is published in honor of Abel P. Upshur’s birthday, June 17, 1790.
Today, States’ rights are remembered as a legalistic excuse for the preservation of slavery – a part of the past best forgotten. One historian scoffs at the notion of “loyalty to the South, Southern self-government, Southern culture, or states’ rights,” declaring that “slavery’s preservation was central both to Southern politics and to the South’s withdrawal from the federal Union.” According to this Seaborg-winning professor, taking seriously what Southerners said about States’ rights is nothing more than “sepia-tinged nostalgia for the Old South.” A Pulitzer-winning historian of what he calls “a failed rebellion to preserve slavery” claims that masking the cause of slavery with an “alternative explanation” of States’ rights or Southern culture was a “psychological necessity” for Southerners. Indeed, it is de rigueur among modern historians to discount whatever Southerners said about politics, economics, or culture as a false front for the ulterior motive of slavery.
This essay series aims to right the wrongs which the commissars of acceptable opinion in academia and the media have inflicted upon the role of States’ rights in Southern history. Indeed, an honest study of the great political treatises of the Old South proves that the political philosophy of States’ rights was never a mere pretense for slavery, but reflected a deep passion for self-government rooted in Southern culture, as well as an earnest understanding of the Constitution rooted in Southern history – what the distinguished M.E. Bradford describes as a “patrimony,” “birthright,” and “heritage,” stretching from Magna Carta in 1215, through the Glorious Revolution and American Revolution in 1688 and 1776, and to the Constitution in 1787. Abel Upshur’s A Brief Enquiry into the Nature and Character of the Federal Government, published in 1840, is the subject of this essay.
Abel P. Upshur was born in 1790 on Virginia’s Eastern Shore, a small strip of land between the Chesapeake Bay and the Atlantic Ocean. Upshur, son of a prominent family in this isolated corner of the country, attended Yale College and Princeton University, but was expelled from the latter after leading a student rebellion which threatened to shut down the school. At Upshur’s hearing, Princeton officials compared the school administration to civil government, arguing that both were owed absolute obedience. Upshur disputed this comparison, retorting that if the people were “dissatisfied with the government” then they “have a right to resist or even to overthrow it.” Upshur studied the law privately and was admitted to the bar in 1810. He opened his own law firm in Baltimore, but returned to Virginia after his father’s death, where he briefly volunteered in the War of 1812. Back home, his new law practice flourished and he became active in Virginia politics, serving as a legislator, attorney, and judge.
Although Upshur began his career as a Federalist, growing political, economic, and cultural attacks on the South from the North, combined with the wartime treason of the Federalists (during the War of 1812, New Englanders had traded with the enemy and even debated seceding at the Hartford Convention) pushed him into the Whig Party, a new party born in opposition to the tyrannical President Andrew Jackson. Upshur was against amending the Virginia Constitution to increase the representation of the frontier west against the aristocratic east, arguing that since the east owned most of the property and paid most of the taxes, it was entitled to a greater share in the government. “Shall he who possesses no property be permitted to dictate laws for regulating the property of others?” asked Upshur. “Shall he who pays no taxes be permitted to pass laws taxing others?” As Upshur saw it, only a government comprised of a freeholding yeomanry and gentry – in other words, landowners – was responsible enough to rule. Like many Southerners, Upshur originally opposed slavery in principle and favored a conservative plan of emancipation, but Nat Turner’s raid – in which a delusional slave, Turner, led a killing spree through Southampton County, butchering random white families in their sleep and bathing in their blood – combined with the emergent Northern abolitionist movement’s support for Turner’s tactics, forced him onto the defensive. Unlike most Southerners, who concurred that the Tariff of Abominations was unconstitutional and oppressive but demurred at the idea that a State could rightfully resist such a law, Upshur supported John C. Calhoun’s style of unilateral nullification in South Carolina – particularly when President Andrew Jackson, branding it “treason,” threatened to invade the State, hang her leaders, and collect the tax at bayonet-point. In “An Exposition of the Virginia Resolutions of 1798,” a series of essays published by the Richmond Examiner in 1833, Upshur defended the legality of nullification on the basis of James Madison and Thomas Jefferson’s Virginia and Kentucky Resolutions. “They are propounded not in the spirit of a controversialist,” Upshur said of his essays, “but with a deep conviction that they invoke the only principles upon which the rights of States can be maintained, and of course the only security against a consolidated and essentially monarchical government.”
During John Tyler’s presidency, Upshur served as the Secretary of the Navy and the Secretary of State. As Secretary of State, Upshur laid the groundwork for Texas statehood over the objections of New England (which had protested new Southern States since the Louisiana Purchase) and against the British Empire’s own designs of annexation. Tragically, on February 28, 1844, while aboard the USS Princeton with President Tyler and other officials, a ship gun accidentally exploded, killing Upshur along with five others. Upshur died as his star was reaching its peak, never having fully achieved his potential.
Upshur was a part of the generation which experienced the decline and fall of Virginia’s influence in the Union she had helped found. “In Upshur, the philosophical judge,” claims his biographer, Claude H. Hall, “may be found many of the attitudes, the prejudices, the passions, and the judgments necessary to understand Virginia in the 1830s and 1840s, a state no longer in its golden era, but not yet wrapped up in the nostalgia of the past.” The reason for Virginia’s fate was not that her sons were unworthy of their fathers, but that they did not adapt to the changing times. According to Hall, Upshur remained a “sectional conservative in an era of dynamic national expansion,” defending his section’s interests and protecting minorities from tyrannous majorities when most were singing the praises of nationalism and democratization. “Their speeches were still brilliant, their writings as polished as before, their arguments as cogent, their principles as fervently held, but generally their faces were turned to the past,” explains Hall. “The nation, by contrast, looked confidently to the future.”
In 1840, Upshur wrote A Brief Enquiry into the Nature and Character of our Federal Government not as a standalone treatise, but as an exhaustive refutation of Justice Joseph Story’s own Commentaries on the Constitution of the United States. Upshur’s Enquiry was originally intended for limited circulation, but it went public after he joined the Tyler Administration. The best Southern constitutional treatise in some time, the Enquiry was adopted by the University of Virginia and the College of William & Mary. During the Republican regime of Abraham Lincoln, Northern Democrats protesting the so-called “Civil War” cited the Enquiry to argue that the Confederacy was founded on constitutional principles. According to biographer Hall, “Along with John C. Calhoun’s Discourses on the Government and Constitution of the United States, it is certainly the most representative work of the particularistic school which attempted to revitalize the ideas of Thomas Jefferson, Spencer Roane, and John Taylor of Caroline, and to refute the nationalistic concepts of Chief Justice Marshall, Justice Joseph Story, and Chancellor James Kent.” Thomas E. Woods, libertarian author and creator of LibertyClassroom.com, calls Upshur’s Enquiry “one of the finest and most systematic defenses of the Virginian states’ rights school of constitutional interpretation ever written.” According to Donald Livingston, founder of the Abbeville Institute, the conflict between Story and Upshur was about more than just the Constitution, but boiled down to a conflict between the “Hobbesian unitary state” and the “Aristotelian polycentric order” – the former centralized and coercive (“Leviathan”), the latter decentralized and consensual (the city-states of Ancient Greece and the numerous kingdoms of Christendom).
In the preface to his Enquiry, Upshur conceded that while Story’s Commentaries were “a valuable compendium of historical facts” and that it contained some “just views” of the Constitution,” he was interested in “its political principles alone,” which he found misleading, fallacious, and even downright deceptive. “My sole purpose,” began Upshur, “has been to enquire into the correctness of those principles, so far as they relate to the true notion and character of our federal government.” Considering the nationalism and democratization of the Jacksonian Era, however, Upshur doubted that his reassertion of tradition would be well-received. “I know that the actual practice of the federal government for many years past, and the strong tendencies of public opinion in favor of federal power, forbid me to hope for a favorable reception, except from the very few who still cherish the principles which I have endeavored to reestablish.” Upshur admitted that to most, the original intentions of the Founding Fathers, though “not wholly forgotten,” were “no longer respected,” but acknowledged that there were still some with a “sincere desire for truth.” Upshur disavowed that the ideas of the Enquiry were anything new, maintaining that he was simply restating and analyzing historical facts. “I do not claim the merit of originality,” he said. “My conclusions are drawn from the authentic information of history, and from a train of reasoning, which will occur to every mind, on the facts which history discloses.” Upshur’s goal was to restore what was once widely understood but had since been forgotten – “the great principles upon which political poles in our country were once divided.”
Upshur began the Enquiry with a respectful nod to the Federalist, the first commentary on the Constitution of them all. The authors of the Federalist – James Madison, Alexander Hamilton, and John Jay – were all influential participants in the actual formation of the Constitution. Despite the strengths of these wise, experienced statesmen, their biases weakened their authority as commentators. Indeed, while the Federalist was “a very full and philosophical analysis of the subject,” it remained “a mere argument in support of a favorite measure.” Plus, added Upshur, everything that Madison, Hamilton, and Jay wrote about the Constitution was conjectural; they had an idea about how things should work in theory, but no idea how things would work in practice. “Much has been developed in the actual practice of government, which no politician of that day could have seen or imagined,” explained Upshur. “New questions have arisen, not then anticipated, and difficulties and embarrassments wholly unforeseen have sprung from new events in the relation of the states to one another, and to the general government.” Indeed, Madison and Hamilton had sworn in the Federalist that the States were sovereign and denied that the federal government could ever coerce the States, yet Upshur had seen President Andrew Jackson deny that the States were sovereign and threaten to invade South Carolina to enforce the point. While the Founders understood “the great principles of civil and political liberty” better than Upshur’s generation, Upshur’s generation better understood the “practical operation” of the Constitution, particularly key provisions – such as the Preamble and the Necessary and Proper Clause – considered innocuous at the time but proven troublesome later. Due to these problems with contemporaneous commentaries on the Constitution Upshur recognized the need for modern commentaries and understood why Story’s work was so celebrated.
Story’s Commentaries was divided into three sections. The first covered the Colonial Era, the second the American Revolution and the Articles of Confederation, and the third the formation and adoption of the Constitution. Upshur approved of this “natural order of investigation” and “judicious” structure, agreeing with Story that interpreting the Constitution required going back in time. “In order for a correct understanding of the Constitution,” claimed Upshur, “it is absolutely necessary to understand the situation of the states before it was adopted.”
According to Upshur, the history of the American Colonies, particularly their settlement and “the charters from which they derived their rights and powers as separate governments,” was “the true starting point in the investigation of those vital questions of constitutional law which have so long divided political parties in the United States.” Since the political status of the States was ultimately derived from the political status of the Colonies, whether the Colonies were one or separate ultimately determined whether the States were one or separate – a question with major implications concerning the correct construction of the Constitution. “Many of the powers which have been claimed for the federal government by the political party to which he belongs,” Upshur said of Story, “depend upon a denial of that separate existence, and separate sovereignty and independence which the opposing party has uniformly claimed for the states.” Story grasped the importance of this point, said Upshur, which was why he strenuously denied that the Colonies were separate. Indeed, Story’s central theme – his “favorite object…to impress upon the mind of the reader” – was that Americans have always been “one people.” Story argued that since the American colonists were all “fellow subjects” of the Crown, they were therefore one people. After detailing all of the myriad ways in which the colonists were indeed fellow subjects – e.g. the right to travel and trade between Colonies – Story quoted Chief Justice John Jay:
“All the people of this country were then subjects of the king of Great Britain, and owed allegiance to him, and all of the civil authority then existing or exercised here flowed from the head of the British empire. They were in a sense fellow subjects, and in a variety of respects one people. When the revolution commenced, the patriots did not assert that only the same affinity and social connexion subsisted between the people of the colonies, which subsisted between the people of Gaul, Britain, and Spain, while Roman provinces, to wit, only that affinity and social connexion which results from the mere circumstance of being governed by the same prince.”
Upshur conceded that the American colonists were indeed fellow subjects, but denied that this proved Story’s point that the Colonies were one people. “Every one of them,” Upshur remarked of all the facts which Story had adduced as proof, “is the result of the relation between the colonies and the mother country, and not the result of the relation between the colonies themselves.” The Colonies’ common relation to Britain did amount to a common relation amongst themselves. “They do, indeed, prove a unity between all the colonies and the mother country, and show that these, taken altogether, are, in the strictest sense of the terms, ‘one people,’” said Upshur, “but I am at a loss to perceive how they prove, that two or more parts or subdivisions of the same empire necessarily constitute ‘one people.’” By that logic, reasoned Upshur, then any combination of parts of the British Empire were also one people. “If so,” he quipped, “the people of Jamaica, the British East Indian possessions, and the Canadas are, for the very same reason, ‘one people’ to this day.” Clearly, Story’s logic was flawed. Lastly, contrary to Jay’s contrast between the American Colonies and the Roman provinces, if a “common allegiance” to a “common sovereign” were enough to make different countries “one people,” as he had argued with respect to the Colonies due to their common relation to Britain, then Gaul, Britain, and Spain were indeed all one people, too, due to their common relation to Rome. In short, the fact that the Colonies were fellow subjects did not mean that they were necessarily one people.
Upshur stressed that this point was not a technical, petty issue, but the underpinning of any interpretation of the Constitution and understanding of the Union. “The great effort of the author, throughout his entire work,” Upshur said of Story, “is to establish the doctrine that the Constitution of the United States is a government of ‘the people of the United States,’ as contradistinguished from the people of the several states; or, in other words, that it is a consolidated, and not a federative system.” According to Upshur, all of the powers which Story wanted for the federal government depended upon proving those points. Therefore, “establishing a one-ness” among the Colonies was a “necessity” – and vice versa for Upshur.
According to Upshur, a “people” was defined as “a political corporation, the members of which owe a common allegiance to a common sovereignty, and do not owe any allegiance which is not common.” The Colonies, however, did not owe allegiance to the Crown in common; each Colony owed allegiance separately. There was never any common legislature, treasury, military, or judiciary among the Colonies; each Colony governed herself separately. The Colonies did not share a common settlement; each Colony was established at a separate time and place and in a separate manner. Indeed, the Colonies were not chartered in common; each Colony had a separate charter, which was occasionally amended without affecting the charters of others. “Thus,” Upshur concluded, “they were separate and distinct in their creation; separate and distinct in the forms of their government; separate and distinct in the changes and modifications of their governments, which were made from time to time; separate and distinct in political functions, in political rights, and in political duties.”
Upshur used two examples to illustrate the problem with the concept of the Colonies as one people. The Colony of Virginia, he said, was the first British colony in North America, with clearly demarcated borders. Within those borders, the people of Virginia, though subjects of the Crown, had a government of their own. Those living within those borders comprised the one people of Virginia. The next colony to be established, Plymouth (now known as Massachusetts), likewise had clearly demarcated borders, a government of her own, and was comprised of one people. “When the colony of Plymouth was subsequently settled, were the people of that colony ‘one’ with the people of Virginia?” asked Upshur. “When, long afterwards, the proprietary government of Pennsylvania was established, were the followers of William Penn ‘one’ with the people of Plymouth and Virginia?” Each Colony had separate borders, a separate government, and a separate people. What if, Upshur continued, one of the Colonies had refused to sign the Declaration of Independence? Would the other Colonies have forced her to unite with them, or would she have been left alone? The right to coerce a Colony, as a part of one people, was never claimed or contemplated, Upshur answered. Such a Colony would have been viewed as an enemy to be fought, but not a traitor to be coerced. “To what purpose, then, were the people of the colonies ‘one people,’ if, in a case so important to the common welfare, there was no right in all the people together, to coerce the members of their own community to the performance of a common duty?”
In the second section of Story’s Commentaries, covering the American Revolution and the Articles of Confederation, Upshur observed the same nationalist agenda. “The desire to make ‘the people of the United States’ one consolidated nation is so strong and predominant,” he claimed, “that it breaks forth, often uncalled for, in every part of his work.”
According to Story, the Declaration of Independence sealed the Colonies as a “nation,” and the revolutionary government was a “national government” of the American people rather than of the Colonies. Upshur objected, claiming that Story had “ventured to express decisive and important opinions, without due warrant.” The Continental Congresses held by the Colonies prior to the American Revolution – conventions which nationalists like Abraham Lincoln later cited as proof that the Union predated the Constitution – were not governments, explained Upshur: they issued “resolutions,” not “laws,” and were not even attended by all of the Colonies. “It recommended to its constituents whatever it believed to be to their advantage, but it commanded nothing.” The Continental Congress operated in this fashion until it declared the independence of the represented Colonies, after which it assumed the position of a “de facto” rather than “de jure” government. Far from a national government usurping colonial power in the name of the one people, the delegates – without any common constitution regulating their actions – referred back to their Colonies to determine the extent of their authority as well as for instructions on what to do. All of the acts of the revolutionary government referred to the Colonies, not one American people. Indeed, without the consent and cooperation of the Colonies, the revolutionary government was powerless to enforce its acts. The acts of the revolutionary government were adopted by the Colonies, not by the “numerical majority” of a “mass” of one American people. As an example of the fact that the Colonies remained sovereign, Upshur mentioned that the revolutionary government defined treason as a crime against an individual Colony, not against one American people. “The course of the revolutionary government…attests the fact, that however the people may have occasionally acted, in pressing emergencies, without the intervention of the authorities of their respective colonial governments, they never lost sight of the fact that they were citizens of separate colonies, and never, even impliedly, surrendered that character or acknowledged a different allegiance.”
Upshur was just as adamant against Story’s claim that the Declaration of Independence fused the Colonies into one. “It was not an act done by the state governments, then organized, nor by persons chosen by them,” Upshur quoted Story. “It was emphatically the act of the whole people of the united colonies.” To Story, the Declaration was “the united act of all” and “the achievement of the whole, for the benefit of the whole.” Upshur countered that the Declaration was not a collective act, but rather “the joint expression of their separate wills.” According to Upshur, “We should see, in that act, nothing more than the union of several independent sovereignties, for the purpose of effecting a common object, which each felt itself too weak to effect, alone.” If Spain, Naples, and Holland, Upshur asked rhetorically, while they were subjects to the French Crown, had jointly stated their grievances with France, renounced their allegiance to France, and declared themselves “free and independent States,” as the Colonies had done with Britain, would they therefore become one people? “The case here supposed is precisely that of the American colonies,” argued Upshur. “The fact that they united in the declaration of independence does not make them ‘one people’ any more than a similar declaration would have made Spain, Naples, and Holland one people.”
After making this philosophical point, Upshur delved into the actual history of the Declaration of Independence. It was the Colonies that convened the Continental Congress that adopted the Declaration, “in their separate and distinct capacity, each acting for itself, and not conjointly with any other.” The delegates were not “joint representatives of any one people,” but rather “representatives of separate and distinct colonies.” The Colonies, not one American people, voted on the Declaration, each delegate acting under instructions from his respective sovereign. If all this were not clear enough, Upshur claimed that the language of the Declaration itself settled the issue: “The instrument itself is entitled ‘the unanimous declaration of the thirteen United States of America;’ of states, separate and distinct bodies politic, and not of ‘one people’ or nation, composed of all of them together; ‘united,’ as independent states may be by compact or agreement, and not amalgamated, as they would be, if they formed one nation or body politic.”
Upshur noted that Story dismissed as insignificant the fact that many of the Colonies had formed independent governments prior to the Declaration of Independence and that these governments were exercising the powers of sovereign nations. According to Story, since these governments were formed under the recommendation of the Continental Congress, they did not establish the sovereignty of the Colonies. Upshur replied that it did not matter whose idea it was to establish the governments; all that mattered was who established them. “With whatever motive the act was performed, it was one of supreme and sovereign power, and such as could not have been performed except by a sovereign people.”
Upshur believed that two documents, the Treaty of Paris (the peace treaty between Britain and the United States) and the Articles of Confederation (the first common constitution among the States) were significant in the question of whether the Colonies were one people or separate and distinct. Regarding the Treaty, just as each individual Colony had declared herself a sovereign State in the Declaration of Independence, so the Crown recognized each individual State as “free, sovereign, and independent.” If the United States truly formed one people, argued Upshur, then the Treaty would have recognized only a single sovereignty, rather than recognizing several sovereignties. Regarding the Articles, it was clearly spelled out that “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not, by this confederation, expressly delegated to the United States, in congress assembled.” To Upshur, this clause “left no room for doubt on the subject.” Upshur observed that while powers, jurisdictions, and rights were divisible, sovereignty, freedom, and independence were indivisible; the States could delegate authority, but they could not delegate their sovereignty. Upshur added that as with the Declaration, the States, “each acting separately for itself,” ratified the Articles, not one American people. Lastly, Upshur reasoned that in order to retain something, as the Articles stipulated the States retained their sovereignty, it must first be possessed. Therefore, the States had always been sovereign; they could not have retained their sovereignty otherwise.
Concluding his critique of Story’s second section, Upshur denied that the Colonies had ever formed “one people,” before or after the Declaration of Independence, but rather “a mere league of confederation between sovereign and independent states.”
In Story’s third and final section, covering the framing and ratifying of the Constitution, Upshur confirmed the same contaminating biases of the previous two. “Having informed us that as colonies we were ‘for many purposes one people,’ and that the declaration of independence made us ‘a nation de facto,’” Upshur said with clear disdain, “he now assumes the broad ground that this one people or nation de facto, formed the constitution under which we live.” Upshur also mentioned that Story’s Commentaries relied heavily on Supreme Court rulings, especially his own. Upshur allowed the latter – “we could not suppose that one…would advance, as a commentator, a principle which he rejected as a judge” – though he opposed deferring to the Supreme Court in all cases. “In most cases…no higher authority in the interpretation of the constitution is known in our systems, and none better could be desired,” said Upshur. “It is only in questions of political power, involving the rights of the states in reference to the federal government, that any class of politicians are disposed to deny the authority of the judgments of the Supreme Court.” According to Upshur, the Supreme Court simply did not have jurisdiction over the States.
Story was impressed with the language of the Preamble (“We, the people of the United States, do ordain and establish this constitution for the United States of America”), which he believed proved that the Constitution was ratified by one American people rather than the States –a possibility which the Anti-Federalists had feared and foretold. Upshur explained, however, that while preambles of a statute may be used in interpreting its “true object and intention,” they have no “law-making power” of their own. As a judge, remarked Upshur, Story should have known this. The question should not be how to construe the Preamble – Story was making something out of nothing, as Upshur would show – but how the Constitution was actually adopted, a question which Upshur was confident that history plainly answered.
The Preamble did not always read, “We, the people,” but originally read, “We, the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia…” Unlike the rest of the Constitution, which was debated and amended, this version of the Preamble was adopted unanimously. Later, the Committee of Style, tasked with editing the wording of the draft but not amending its meaning, shortened the Preamble to its current form without any debate. “It is manifest that this committee had no power to change the meaning of anything which had been adopted, but were authorized merely to ‘revise the style,’ and arrange the matter in a proper order,” argued Upshur. Furthermore, an actual amendment to the draft of the Constitution necessitated a change in the Preamble. The Constitution required the ratification of nine States to be enacted into law – only for those States which had ratified, of course. At the time, however, it was unknown whether over nine States would ratify the Constitution, and would have been presumptuous to name States as parties to a compact to which they had not consented. Indeed, Rhode Island did not even send a delegate to the Constitutional Convention of 1787 – and would not ratify the Constitution until 1790 – yet she was named in the original Preamble! “Hence it became necessary to adopt a form of expression which would apply to those who should ratify the constitution, and not to those who should refuse to do so,” concluded Upshur. “This construction corresponds with the historical fact, and reconciles the language employed with the circumstances of the case.” Upshur was astounded at how much Story’s interpretation of the Constitution was based on this piece of pure pettifoggery. In no way, shape, or form did the Preamble mean that one American people, as opposed to the States, ratified the Constitution.
After disposing of Story’s construction of the Preamble, Upshur took on Story’s theory that one American people, not the States, ratified the Constitution. First, according to Upshur, Story himself provided ample documentation in his Commentaries that the Constitutional Convention itself was convened by the States, its delegates appointed by the States, and its proceedings confirmed by the States. “We may well ask, therefore,” remarked Upshur, “from what unknown source our author derives the idea, that the constitution was formed by ‘the people of the United States,’ since the history of the transaction, even as he himself has detailed it, proves that ‘the people of the United States’ did not appoint delegates to the convention, were not represented in the body, and did not adopt and confirm its act as their own.” Furthermore, Upshur insisted that despite the rising nationalist rhetoric of the day and age, “there were no such people as ‘the people of the United States.’” Under the Articles of Confederation, the States expressly retained their sovereignty – “a league between independent sovereignties, and not one nation composed of them all together.” Congress was “the representative of the states,” not one American people. Significantly, citizenship was by State; there were no American citizens, only State citizens. Even the provision in place for alterations to the Articles required the consent of each State, not the will of one American people. More fundamentally, however, was the fact that only the States had the power to change their form of government. “What authority was there, superior to the states, which could undo their work?” asked Upshur. “What power was there, other than that of the states themselves, which was authorized to declare that their solemn league and agreement should be abrogated?” For any other power to have done so, asserted Upshur, would have been illegitimate – “an act of usurpation and violence.” Only the States could have rightfully replaced the Articles with the Constitution.
Upshur made the essential point that it was not the delegates in Philadelphia who enacted the Constitution into law and gave it its true meaning, but the delegates of the State conventions. “It is not the mere framing of a constitution which gives it authority as such,” noted Upshur. “It becomes obligatory only by its adoption and ratification; and surely that act, I speak of free and voluntary government, makes it the constitution of those only who do adopt it.” Upshur emphasized that it was the States which adopted and ratified the Constitution. Each State ratified the Constitution at different times and on different terms. “This was certainly state action,” averred Upshur, “in as distinct a form as can be imagined.” That only nine States needed to ratify the Constitution in order for it to be enacted into law proved that Americans were “separate and distinct political communities.” If they were an “aggregate mass,” then ratification would have been a national referendum rather than a series of separate State conventions and would have been imposed on States that did not ratify. To illustrate this point, Upshur demonstrated that if Massachusetts, New York, Pennsylvania, and Virginia (four States with a majority of the American population) had refused to ratify, but the other nine States had ratified, then the Constitution would still have been enacted into law for the latter States, despite them comprising a minority of the American population. In other words, a minority of the so-called one American people could have enacted the Constitution into law. “This single example shows, conclusively,” Upshur boasted, “that the people of the United States, as contradistinguished from the people of the several states, had nothing to do, and could not have had anything to do with the matter.”
“I do not perceive with what propriety it can be said that the ‘people of the United States’ formed the Constitution,” summarized Upshur, “since they neither appointed the convention, nor ratified their act, nor otherwise adopted it as obligatory upon them.” According to Upshur, the history that he had brought to light and logic that he had applied “should silence forever, all those arguments in favor of consolidation, which are founded on the preamble to that instrument.” Unfortunately, the exact opposite has happened – truth and reason are silenced and Story’s notion of “one nation, indivisible” is now recited in churches and classrooms across the ruins of the republic.
Upshur quoted Story as claiming that the Constitution was “not a contract imposing mutual obligations, and contemplating the permanent subsistence of parties having an independent right to construe, control, and judge of its obligations.” Upshur frankly admitted that he did not think that this statement made any sense. Regardless of whether the Constitution was ratified by “the people of the United States” or “the states as such,” it was clear that it was indeed a “contract” between “parties.” Upshur also clarified that none of the parties to the Constitution ever mentioned that they had power over the “obligations” of the federal government. “We all admit that the power and authority of the federal government, within its constitutional sphere, are superior to those of the states, in some instances, and co-ordinate in others, and that every citizen is under an absolute obligation to render them respect and obedience,” conceded Upshur. “We all admit it to be true, as a general proposition, that no citizen nor state has an independent right to ‘construe,’ and still less to ‘control,’ the constitutional obligations of that government.” What had been asserted was that the States could construe, control, and judge their own rights against the federal government. “All that has ever been contended for is, that a state has a right to judge of its own obligations, and, consequently, to judge those of the federal government, so far as they relate to such state itself, and no farther.” According to Upshur, if the federal government “transcends” its constitutional authority, then it would be outside of its “obligations,” and thus the States would be within their rights to resist such encroachment. The problem, however, was the question of who had the responsibility of determining whether the federal government was within or outside of its sphere – “who is the common umpire?”
In Upshur’s time, a compact was understood as an agreement of mutual obligations between independent parties. If the Constitution were a compact, then it was a “confederation;” if not, then it was a “consolidated government.” Story denied that the Constitution was a compact on the grounds that the Constitution never explicitly identified itself as a compact. Upshur disputed Story’s logic, arguing that “a deed, or other instrument, receives its distinctive character, not from the name which the parties may choose to give to it, but from its legal effect and operation.” In other words, the original intentions of the parties were what mattered, not how their language could be later construed. Upshur added, however, that Story’s own Massachusetts referred to the Constitution as a compact in her act of ratification.
Story claimed that the Supremacy Clause – “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, shall be the supreme law of the land” – proved that the Constitution was not a compact, as “the people of any state cannot, by any form of its own constitution or laws, or any other proceedings, repeal, or abrogate, or suspend it.” However, Upshur argued that there was nothing irreconcilable between a supreme constitution and a compact. Nullification and secession – two essential rights of parties to a compact – did not affect the Constitution itself or violate the Supremacy Clause. “The Nullifier contends only for the right of a state to prevent the constitution from being violated by the general government, and not for the right to repeal, abrogate, or suspend it,” avowed Upshur, himself an ardent nullifier. “The Seceder asserts only that a state is competent to withdraw from the union whenever it pleases; but that does not assert that in so doing it can repeal, abrogate, or suspend the Constitution as to the other states.” Besides, noted Upshur, all the Supremacy Clause meant was that the Constitution was “‘supreme,’ within its prescribed sphere of action,” not supreme over the States themselves.
Story charged that “the cardinal conclusion for which this doctrine of a compact has been with so much ingenuity and ability, forced into the language of the Constitution (for the latter nowhere alludes to it) is avowedly to establish that, in construing the Constitution, there is no common umpire; but that, each state…is the supreme judge for itself, of the powers, and rights, and duties arising under that instrument.” Begging Story’s pardon, Upshur expressed “unfeigned astonishment” at such a “careless” statement from a Supreme Court Justice in a scholarly study. Upshur stopped short of accusing Story of deliberately distorting the compact theory of the Union, charitably ascribing it to mere ignorance. Indignant over being “misunderstood” and “misrepresented,” Upshur delivered a mini-manifesto of the “state rights school of politics.”
“They believe that those doctrines contain the only principle truly conservative of our Constitution; that without them there is no effective check on the federal government, and, of course, that that government can increase its own powers to an indefinite extent; that this must happen in the natural course of events, and that ultimately the whole character of the government will be so changed that even its forms will be rejected as cumbrous and useless, under the monarchy, in substance, into which we shall have insensibly glided. It is, therefore, because they are lovers of the Constitution and of the union, that they contend strenuously for the rights of the states. They are no lovers of anarchy nor of revolution. Their principles will cease to be dear to them, whenever they shall cease to subserve the purposes of good order, and of regular and established government. It is their object to preserve the institutions of the country as they are, sincerely believing that nothing more than this is necessary to secure to the people all the blessings which can be expected from any government whatever. They would consider themselves but little entitled to respect as a political party, if they maintained the loose, disjointed, and worse than puerile notions, which the author has thought it not unbecoming to impute to them.”
The compact theory of the Union, explained Upshur, was not derived from the “express terms of the Constitution,” but was rather “an incident of [the States’] sovereignty, which the Constitution has not taken away.” Therefore, it was misleading for Story to accuse the compact theory of being “forced” into the Constitution, as no one had ever claimed that it was in the Constitution in the first place.
Concerning the question of the “essential character” of the Constitution, Upshur concluded that “every fair and legitimate inference” pointed to that of a compact. After all, the Constitution “was made by sovereign states, and…that is the only way in which sovereign states treat with one another. Since “sovereignty is the very last thing which a nation is willing to surrender,” constructions of the Constitution should always err on the side of States’ rights rather than consolidation. “In all cases, therefore, where the language and spirit of the Constitution are doubtful, and even in favor of consolidation…we should still incline against it, and in favor of the rights of the states, unless no other construction can be admitted.”
After answering the “preliminary question” of whether the Constitution was a compact – and thus whether it formed a “federative” or “consolidated” government – Upshur analyzed the basic structure of each branch of the federal government.
The federal legislature was comprised of two houses, the Senate and the House of Representatives. In the Senate, each State had two Senators, chosen by their State legislature (this was before the misplaced Seventeenth Amendment, which severed Senators from allegiance to their States). The Senate, therefore, with the States equally represented regardless of population – preserving their “perfect equality as sovereign states” – was “strictly federative.” In the House of Representatives, each State’s number of Representatives was proportional to her population. The States, according to their own laws, elected Representatives. Upshur added that one American people would have national elections rather than State elections and uniform voter qualifications rather than separate qualifications. “If the House of Representatives were national, in any practical sense of the term, the ‘nation’ would have authority to provide for the appointment of its members, to prescribe the qualifications of votes, and to enforce the performance of that duty.”
To the argument that the House was a national rather than federal body because the States were proportionally rather than equally represented, Upshur replied that proportional representation was not necessarily incompatible with confederation – the States General of the United Provinces, for instance. “There is no reason, apparent to me, why a league may not be formed among independent sovereignties, giving to each an influence in the management of their common concerns, proportioned to its strength, its wealth, or the interest which it has at stake.” Besides, Upshur also noted, the States were still equally represented in the Senate. Even if the House were national, continued Upshur, it still would not matter. The legislature, comprised of the Senate and the House, would still be federal due to the undeniably federal Senate. A legislature can have national features but still be federal overall, but it cannot have federal features and still be national overall. “The question is whether or not the states have preserved their distinct, sovereign characters in this feature of the Constitution,” explained Upshur. “If they have done so, in any part of it, the whole must be considered federative.” The “unity” implied of a nation was “absolutely inconsistent” with a confederation, while “joint action” was permissible between “the members of a confederation…exerting their several powers.”
The President and Vice President were chosen by electors, delegates chosen by their own States. The elections for the State electors were held separately by each State. A State’s number of electors was the sum of its Representatives and Senators – a combination of proportionality and equality. The States, therefore, controlled the process of electing the federal executive from start to finish As Upshur said, “There is not the least trace of national agency, in any part of this proceeding.”
Upshur used a hypothetical example to expose the shortcomings of Story’s theory of one American people. If one American people elected the President, rather than the States, then all a candidate should need to win would be a popular majority. Presidential elections, however, were decided by the votes of the State electors; the popular majority was, essentially, irrelevant. Indeed, a candidate could lose the popular vote and still win the presidency – a phenomenon beginning with John Quincy Adams’ “corrupt bargain” and continuing up to George W. Bush’s recount fiasco. “If the president could be chosen by the ‘people of the United States’ in the aggregate, instead of by the states, then it is difficult to imagine a case in which a majority of those people, concurring in the same vote, could be overbalanced by a minority.” Since the States elected the President, not one American people, the United States had to be a confederation, not a nation.
The protocol in the event that no candidate received a majority of the State electors removed “all doubt upon this point,” claimed Upshur. The House settled the election, all of the Representatives voting as single States. “Why, then, should this federative principle be preserved, in the election of the president in the house of representatives if it was designed to abandon it, in the election of the same office by the electoral colleges?” Upshur answered that nationalists like Story had “no good reason” to explain this discrepancy in their theory.
Upshur did not spend much time on the structure of the federal judiciary. Since judges were nominated by the President and approved by the Senate – a federal officer and a federal body – the judiciary was “manifestly federative.”
After his overview of the federal structure of all three branches of government, Upshur argued that the amendment process was federal, too. Proposing an amendment required either two thirds of both houses of the federal legislature or two thirds of the State legislatures. The fact that the same proportion was required from the federal legislature and the States indicated to Upshur that the two were “the same power.” Whether through “separate action” or a “common federative agent,” it was “the power of the states” which amended the Constitution.
Ratification of an amendment required three quarters of the States. Since the power to alter or amend a government was the same as the power to create a government, Upshur believed that this proved that the States were the sovereign parties to the Constitution, not one American people. “The idea of separate and independent political corporations could not be more distinctly conveyed.” Indeed, it was contradictory that “the people of the United States,” whom Story alleged ratified the Constitution, could not alter or amend the government of their own creation. If the United States were truly one American people as opposed to a confederation of States, then an amendment to the Constitution should require three quarters of the total population rather than three quarters of the States. As with each branch of the government, the amendment process was fully federal.
Upshur found Story’s answer to the question, “Who is the final judge or interpreter in constitutional controversies?” incomplete and weak. According to Upshur, Story claimed that because the role of the judiciary was to interpret the law, the federal judiciary must interpret federal law – the Constitution. Therefore, the Supreme Court was the final judge over the Constitution.
Upshur recognized that the Supreme Court was the final judge within its jurisdiction. “Whatever comes within the legitimate cognizance of that tribunal, it has a right to decide, whether it is a question of the law, or of the Constitution.” No one denied this, despite what Story said. The issue, however, was the extent of that “legitimate cognizance,” meaning what “constitutional controversies” the federal judiciary had the right to judge. Article III of the Constitution defined the jurisdiction of the federal judiciary as “all cases in law and equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority,” as well as cases of foreign relations, cases between State governments or the citizens of separate States, and cases to which the United States were a party. The Eleventh Amendment ensured that “the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another State, or by Citizens or Subjects of a Foreign State.” Contrary to Story, Upshur believed that the powers of the federal judiciary were the most strictly limited of all. “There is no part of the Constitution in which the framers of it have displayed a more jealous care of the rights of the states, than in the limitations of the judicial power.” Federal jurisdiction was limited to what was “absolutely necessary to carry into effect the general design, and accomplish the general object of the states, as independent, confederated states.” While the federal judiciary was indeed the final judge in cases within its jurisdiction, reminded Upshur, it was not the final judge of the limits of its jurisdiction. “The right to decide a case arising under the Constitution does not necessarily imply the right to determine in the last resort what that Constitution is.”
Upshur recognized that the term “all cases arising under the Constitution, and the laws made in pursuance thereof” could be twisted to encompass virtually all cases, rather than only those concerning things enumerated in the Constitution, but doubted that such a “latitudinous” construction would be taken seriously. Today, however, there is nothing free from the scrutiny of the Supreme Court; not even State license plates are safe from Sonia Sotomayor.
Upshur raised the possibility that the Supreme Court “may assume jurisdiction over subjects and between parties, not allowed by the constitution.” This posed a serious problem, warned Upshur, as the federal judiciary could essentially judge the extent of its own authority, usurping power unchecked. “Who, then, is to decide this point?” asked Upshur. “Shall the Supreme Court decide it for itself, against the world?” Fortunately, assured Upshur, the Constitution provided a solution.
According to the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The States kept whatever powers they did not enumerate for the federal government in the Constitution. Upshur emphasized that the undelegated powers were reserved “to the states respectively,” as opposed to the States collectively. The powers reserved by the States were “independent” of one another and could be exercised without “reference or responsibility” to each other. Such unilateral power, as the States reserved under the Tenth Amendment, was the hallmark of sovereignty. To Upshur, the Tenth Amendment was proof that the States “acted as independent and sovereign states” in ratifying the Constitution and that the Constitution was an “agreement between sovereign states.” A sovereign, said Upshur, has the right “to be alone the judge of its own compacts and agreements.” As sovereign parties to the Constitution, therefore, each State had the right to interpret the Constitution for herself. If the federal judiciary were the “sole judges of the extent of their own powers,” then their powers would be “universal,” and the Constitution “idle and useless.”
The federal government, after all, was simply the “creature” of the States – not a party to the Constitution, but its product. The federal government was a “mere agent” of its principals, the States, to which the limited powers for particular objects with which it was entrusted were enumerated in the Constitution. Upshur allowed that the federal government would naturally try to define its power for itself, but stipulated that this probing must be done “in subordination to the authority by whom his powers were conferred.” For the federal government to “judge the extent of its own powers, without reference to its constituent” would grant unlimited power to the former, “notwithstanding the plainest and most express terms” of the Constitution. If the federal government were the ultimate authority over itself, then the Constitution would be “the idlest thing imaginable,” and there would be “no barrier against the usurpations of the government” and “no security for the rights and liberties of the people.” Upshur argued that given such a “pernicious” outcome for a “free and equal government,” it should be self-evident to everyone that Story was wrong.
According to Upshur, in questions of “political power” between the States and the federal government, the Constitution granted no jurisdiction to the federal judiciary – no “common umpire” whatsoever. Accordingly, each State, “by virtue of that inherent, sovereign power and authority, which, as to this matter, it has never surrendered,” has the right and duty to judge for herself. Contrary to Story, who argued that the rulings of the Supreme Court were “binding” upon the States, Upshur countered that such rulings were binding only upon the parties to a particular case and that the federal judiciary had no jurisdiction over the States. “This agreement they made in their character of sovereign states, not with the federal government, but with one another,” Upshur said of the Constitution. “As sovereign states they alone are to determine the nature and extent of that agreement, and, of course, they alone are to determine whether they have given the federal courts authority to bind them in any given case.”
Such “technical rules,” however, did not get to the heart of the matter for Upshur. The States were “sovereign nations,” and sovereign nations did not petition for their rights from judges, particularly “tribunals of that power against which their own power is asserted.” Since the States had demonstrated “the most jealous care of their separate sovereignty and independence” throughout the Constitution, it made no sense for them to grant unlimited powers of interpretation to the Supreme Court.
Having answered the question of the common umpire in questions of power between the States and the federal government, Upshur turned to how Story interpreted the Constitution. According to Story, the Constitution was formed by the “people of the United States,” and thus was no different from any of the State constitutions, formed by the people of each State. Since State constitutions were interpreted liberally, the Constitution should also be interpreted liberally. Upshur, of course, disagreed. “There is no such analogy between them…as to require that they should be construed by the same rules,” avowed Upshur. “The Constitution of the United States is to be considered as a compact or confederation between free, independent and sovereign states, and is to be construed as such, in all cases where its language is doubtful.” To Upshur, this meant that the Constitution should be construed “strictly” – taking the words of the parties to the compact as “the true exponents of their meaning.” Elaborating on the meaning of strict constructionism, Upshur turned Story’s own arguments against him. Story said that since the Constitution was a “grant” of power from the “people of the United States” (the “grantor”) to the federal government (the “grantee”), the Constitution should be interpreted liberally “for the benefit of the grantor” – presuming in favor of consolidation. Conceding Story’s logic, Upshur challenged Story’s premises, claiming that the States, giving and receiving power amongst themselves for their common benefit, were both the grantor and grantee. If the States were the grantor, however, and the grantor was entitled the most favorable construction, then the Constitution should be interpreted strictly – presuming in favor of the States. Strict construction, however, did not mean clinging to the letter of the law, but upholding its spirit, “the intention of the framers of the Constitution.”
Story’s comparison of the Constitution to the State constitutions was incorrect on a number of counts, claimed Upshur, chief among them the differing purposes of the two. State constitutions were the “primary social relation” of the people of the States. The State constitutions governed the whole domestic life of their people and were responsible for protecting “the great rights of life, liberty, and property.” The Constitution, by contrast, was formed for the “common purposes of all the states,” namely, foreign relations. “Take away the federal government altogether, and still we are free, our rights are still protected, our business still regulated, and we still enjoy all the other advantages and blessings of established and well-organized government,” observed Upshur. “But if you take away the state governments, what have you left? A federal government which can neither regulate your industry, secure your property, nor protect your person!” Given that the States were essential while the federal government was expendable – combined with the susceptibility of the federal government “to encroach on the rights and powers of the states” and form “combinations by which a majority of the states may oppress the minority” – it made the most sense to construe the Constitution as strictly as possible, in order that most powers remained with the former while the enumerated few went to the latter. Strict construction of the Constitution was necessary to maintain a “just balance” between the States and the federal government.
The Tenth Amendment, reminded Upshur, also affirmed that the Constitution should be “strictly” rather than “liberally” construed. The corresponding provision in the Articles of Confederation held that all powers not delegated to Congress were “expressly” reserved, yet the Tenth Amendment omitted this term. From this omission, Story surmised that the Constitution was supposed to be loosely rather than strictly constructed. As with the Preamble, however, Upshur set Story’s sophistry straight. According to Upshur, the Necessary and Proper Clause permitted the federal government to exercise some “incidental powers” which were not enumerated in the Constitution yet were clearly intended by the Framers. “For example, the power to provide a navy is not, in itself, the power to build a dry dock,” explained Upshur, “but, as dry docks are necessary and proper means for providing a navy, congress shall have the power to authorize the construction of them.” If the term “expressly” had been included in the Tenth Amendment, however, then this fair inference could have been disputed. While the omission was intended to free Congress “to provide the necessary and proper means of executing the granted powers,” the Tenth Amendment “denied to the federal government every power which was not granted.” Only a strict construction of the Constitution could make sense of the Tenth Amendment.
Upshur knew, however, that nationalists like Story had abused the Necessary and Proper Clause to justify the usurpation of powers reserved to the States. As Story put it, the federal government could claim “all the means requisite…unless they are excepted in the Constitution.” This violated ‘the letter and spirit” of the Constitution, charged Upshur. The federal government possessed no power except those which the States had delegated. “The author’s idea is, that everything is granted which is not excepted,” reiterated Upshur. “Whereas the language of the tenth amendment is express, that everything is excepted which is not granted.” If all power but that which was excepted was open to Congress, warned Upshur, then the “discretion” of politicians rather than the “limitations of the Constitution” would prevail, overthrowing the rule of law for the rule of men.
To Upshur, the correct interpretation of the Necessary and Proper Clause simply took its words at face value. “Incidental powers” should be truly necessary means for the execution of an enumerated power, not ends in themselves masquerading as means. “Congress have no right to use for the accomplishment of one purpose, means ostensibly provided for another,” explained Upshur. “To do so would be a positive fraud, and a manifest usurpation.” Means should also be proper, which meant “consistent with the spirit of liberty and equality,” respectful of the “distinct sovereignty of the states,” and within the “limited and specifically enumerated” powers of the Constitution. To prevent the consolidation of power – which Upshur noted was already getting out of control – the Necessary and Proper Clause had to be correctly interpreted and enforced.
Upshur was concerned that the people, seduced by the outward strength of a large, national government were sacrificing their “free and happy” government for a “splendid and shiny” one. The Founders, avowed Upshur, knew that with governments as with men, pride came before the fall. “Those nations who have gone in search of grandeur, power, and splendor, have also fallen a sacrifice and been the victims of their own folly,” Upshur quoted Patrick Henry. “While they have acquired those visionary blessings, they lost their freedom.” Upshur suspected that behind the nationalists’ professions of the “public good” lurked “private interests.” Indeed, those who supported consolidated rather than confederated government were those with the most to gain – whether by protecting their industries from competition with high tariffs or plundering the Treasury through internal improvements. “Here, that love of splendor and display, which deludes so large a portion of mankind, unites with that self-interest by which all mankind are swayed, in aggrandizing the federal government, and adding to its powers.”
Upshur conceded that Story’s Commentaries were an impressive display of scholarship, but concluded that Story’s unabashed advocacy of his political agenda had driven him to bend logic and stretch the truth. Upshur feared that Story’s “false views,” “forced constructions,” and “strange misapprehensions of history” were “mischievous” and “dangerous.” Particularly at risk under Story’s “beau ideal” government was the minority – in particular, the Southern States. According to Story, the one American people were sovereign and answered to no one. In the States, this was fine, as the separate and distinct people of each shared common “character, interests, and pursuits.” Across the entire United States, however, where character, interests, and pursuits were different and divided along sectional lines, “a fair opportunity is afforded for the exercise of an oppressive tyranny, by the majority over the minority.” Federal courts could not be trusted for “redress,” as they were a part of the oppressive government in question. The “virtue and intelligence” of the people was not reliable, either, as the people – and especially their politicians – were not always virtuous or intelligent. “Of what people?” asked Upshur. “Of that very majority who have committed the injustice complained of, and who, according to the author’s theory, are the sole judges whether they have power to do it or not, and whether it be injustice or not.” If the purpose of the government was “to protect the weak, to restrain the violent, to punish the vicious, and to compel all to the performance of the duty which man owes to man in a social state,” Story’s framework, by consolidating all power in the majority, failed spectacularly. Upshur bitterly noted that such an “unbalanced, unchecked” government would eventually become a “victim to its own excesses.”
Upshur set little store by the checks and balances between federal branches of government in which Story had such faith, preferring, in the Southern tradition, the separation of powers. Checks and balances, insisted Upshur, were “illusory,” as one department would inevitably dominate the others and centralize all powers in itself. What was needed were “many and severe restraints” and a “salutary countervailing interest” on the entire federal government, not just between its branches. According to Upshur, this was the rightful role of the States – “the true balance-wheel, the only effectual check upon federal encroachments.” The people of the States, already organized with governments of their own and naturally united in interests, would be more effective guardians of their rights and liberties than the disorganized and divided one American people. Indeed, the States had the greatest reason and ability to regulate the federal government – “to give it power enough, and to prevent it from assuming too much.” If the federal government ever did usurp the rights of the States, then the States were free to “interpose,” judging the constitutionality of for themselves and, if necessary, blocking its enforcement within their jurisdiction.
Upshur was confident that a confederated Union of strong, free States would be peaceful, prosperous, and perpetual. For federalism to flourish, however, love of and loyalty to the States must be cultivated. The people should look to their States as truly sovereign and not mere “municipal corporations” of the federal government. “They ought to know that they can look nowhere else with perfect assurance of safety and protection,” urged Upshur. “Let them then maintain those governments, not only in their rights, but in their dignity and influence.” To the objection that the States would abuse the power of interposition, Upshur retorted that the real danger was not disunion among the States, but submission of the States to a “gigantic” federal government. For freedom’s sake, the States must be restored to their “proper position” as the “palladium” of the people. “Then alone will their voice be heard with respect at Washington; then alone will their interposition avail to protect their own people against the usurpations of the great central power,” avowed Upshur. “It is vain to hope that the federative principle of our government can be preserved, or that anything can prevent it from running into the absolutism of consolidation, if we suffer the rights of the states to be filched away, and their dignity and influence be lost, through our carelessness or neglect.”
Long after the publication of the Story’s Commentaries and Upshur’s Enquiry, and long after the authors were dead, their two opposing philosophies stood in stark contrast in the inaugural addresses of two opposing American presidents. “Our present condition, achieved in a manner unprecedented in the history of nations,” declared Jefferson Davis from Richmond, Virginia, “illustrates the American idea that governments must rest upon the consent of the governed, and that it is the right of the people to alter or abolish governments whenever they become destructive of the ends for which they were established.” Channeling Upshur, Davis described the Union as a “compact,” the States as “sovereign,” the federal government as an “agent,” and the Constitution as a document which was to be “strictly construed.” According to Davis, the recently ratified Confederate Constitution preserved the “true meaning” of the old Constitution and the “well-known intent” of the Founders. “We have changed the constituent parts, but not the system of our government,” explained Davis. “The Constitution formed by our fathers is that of these Confederate States.” The Confederacy’s “true policy” was “peace and commerce,” avowed Davis, but if Northern “lust of dominion” threatened her independence, then she would resort to “any measures of defense which honor and security may require.” Abraham Lincoln, however, disagreed. “A disruption of the Federal Union, heretofore only menaced, is now formidably attempted,” announced Lincoln from Washington, D.C. “I hold that in contemplation of universal law and of the Constitution, the Union of these States is perpetual.” Channeling Story, Lincoln averred that Americans had always been one people – “the Union is much older than the Constitution” – described the Union as a “national government” rather than “an association of States,” suggested that whatever the Constitution did not “expressly say” was open to interpretation, insisted that the minority was obligated to “acquiesce” to the “sovereign” majority, and branded secession as “anarchy.” Lincoln disclaimed any right or intention to abolish slavery, promised to enforce the Fugitive Slave Act, and pledged his support for a constitutional amendment to cement slavery in the South. However, if the rebels resisted his authority, then he would retaliate with “invasion,” “bloodshed,” and “civil war.” What Upshur and Story could not settle with ink, Davis and Lincoln would settle with blood.