State’s Rights Vol. 2: St. George Tucker’s Views on the Constitution

tucker

To most historians, states’ rights are nothing more than a treasonous rationale for chattel slavery. One historian, in a purportedly definitive history of “disunion,” takes the incredible liberty of having prominent Fire-Eater Robert B. Rhett curse Thomas Jefferson (“St. Thomas”) in his head, along with “inalienable rights,” “rights of revolution,” and “the principles of 1776,” claiming “the South had revolted to escape those idiocies.” Never mind the fact that Rhett declared time and time again that the Confederacy was founded upon those very ideals, and that if he had any problems with Jefferson, it was that he was too moderate. According to another prolific historian who enjoys using puns to put down the South in his book titles, “Slavery, and not states’ rights, really lay at the heart of their movement.” Voila! Several generations of political, economic, and cultural conflict between two deeply divided nations conveniently distilled down to a single source. Recently, my mother – an “Army brat” who grew up in every corner of America – told me that in her day, “states’ rights” would have been the correct multiple-choice answer to the question, “What was the ‘Civil War’ fought over?” Times, they are a’changin…

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. Studying the great political treatises of the South will establish that states’ rights were not a cheap front for slavery, but a legitimate political philosophy stemming from a deep passion for self-government and sincere beliefs about the true meaning of the Constitution. St. George Tucker’s “View of the Constitution of the United States, published in 1803, is the subject of this essay.

St. George Tucker was born in 1752 in Bermuda. At the age of 19, Tucker left Bermuda for Virginia, where he studied law at the College of William & Mary under George Wythe (mentor to Thomas Jefferson, John Marshall, Henry Clay, and other Southern luminaries). When colonial courts closed in protest against taxation without representation, Tucker smuggled arms from the West Indies to Virginia and South Carolina. During the American Revolution, Tucker enlisted as a major in the Virginia militia, and fought with honor at Guilford’s Court House and Yorktown. By the war’s end, he had advanced to lieutenant colonel. In 1786, Tucker was a delegate to the Annapolis Convention – the prelude to the Philadelphia Convention. Tucker then took up a professorship at his alma mater, and later served as a state and federal judge. His classes, which he insisted on teaching from his Williamsburg home in order to have full access to his library, soon became famous. Although his courses were based on Blackstone’s voluminous legal commentaries, Tucker believed that his students required formal education in the American (as well as Virginian) innovations of British law. To teach his students the principles of American constitutional law, Tucker annotated Blackstone with commentaries of his own. At first, he simply read his annotations to his classes, but in 1803, after encouragement from his friends, Tucker published his commentaries. At the time, Tucker’s commentaries – the first systematic analysis of American constitutionalism – were widely accepted as authoritative, and were even cited by the Supreme Court in many significant rulings. Indeed, Dr. Clyde N. Wilson describes Tucker as “the exponent of Jeffersonian republicanism.” Last, but not least, in 1796, Tucker published a treatise which strongly condemned slavery and proposed a conservative plan of emancipation. That a well-respected Southerner could be for states’ rights and against slavery directly defies the mainstream paradigm of Southern history, and is thus one of many inconvenient truths which have been swept under the rug.

Tucker split his “View of the Constitution of the United States” into two parts: the first section analyzed the basic nature of the Constitution and the Union which it created, the second how power was specifically divided between the states and the federal government.

“The constitution of the United States of America,” began Tucker, “is an original, written, federal and social compact, freely, voluntarily, and solemnly entered into by the several states of North America, and ratified by the people thereof, respectively.” Tucker then delved into the meaning of each of these terms.

A “compact,” according to Tucker, was different from a “charter” or “grant,” since those were between superiors and inferiors; the states, however, were equal. As equal parties to the compact, each state was entitled to benefit equally from the Union. “Here the contracting parties…are all equal,” explained Tucker. “Nor is there anything granted from one to another: each stipulates to part with, and to receive the same thing, precisely, without any distinction or difference in favor of any of the parties.” These benefits were prominently listed in the preamble to the Constitution – justice, peace, common defense, general welfare, and “the blessings of liberty.”

While a compact was an agreement between equal parties – the states – a “federal compact” occurred when “several sovereign and independent states may unite themselves together by a perpetual confederacy, without each ceasing to be a perfect state.” Tucker simply recognized what was, in his time (before the rise of legalistic and mystic nationalism in America), plain as day: the states were sovereign, independent political entities and separate societies. Indeed, he described Virginia as a “sovereign and independent state” in his opening sentence, and would similarly refer to all of the states throughout his commentaries. Tucker considered the “separate organization” of the states, along with the maintenance of all their rights which they had reserved to themselves, as essential to the “nature of the compact.” As long as the states retained their separate agency, “The union is in fact, as well as in theory, an association of states, or, a confederacy.” Tucker credits Montesquieu with the concept of a “confederate, or federal republic,” a form of government intended to reconcile internal freedom with external security. Although the conversion of the United States from the Articles of Confederation to the Constitution strengthened the federal government, it did not alter its relations with the states. “In the new government, as in the old,” claimed Tucker, “the general powers are limited, and…the states, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdictions.” Tucker believed that the Tenth Amendment “fully confirmed” this conservative “construction” of the Constitution. In fact, to Tucker, the liberal construction of implied powers was contrary to basic legal principles. “The powers delegated to the federal government being all positive, and enumerated, according to the ordinary rules of construction, whatever is not enumerated is retained,” Tucker argued. “For expressum facit tacere taciturn [that which is expressed makes that which is implied to cease] is a maxim in all cases of construction: it is likewise a maxim of political law, that sovereign states cannot be deprived of any of their rights by implication; nor in any manner whatever by their own voluntary consent, or by submission to a conqueror.”

Although the Constitution was a “social compact” in that it was ratified only upon the consent of the people, it remained “strictly federal” in that the people were not one nation, under God, indivisible, but composed of sovereign and independent states which assented of their own accord. “Upon these grounds,” by which Tucker meant the social character of the compact, “a considerable alarm was excited in the minds of many, who considered the constitution as in some danger of establishing a national or consolidated government, upon the ruins of the old republic.” If the Constitution were ever construed to be “an act of the people,” Tucker conceded, then “an interpretation that would tend to the annihilation of the states, and their authority” would prevail. Tucker doubted such a reversal was possible, yet that was exactly what Northern nationalists like Daniel Webster and Joseph Story would popularize with flowery rhetoric, and what Lincoln would ultimately seal in fire and blood.

By “original compact,” Tucker meant that “whatever political relation existed between the American colonies, antecedent to the revolution…was completely dissolved and annihilated from that period.” In other words, they were free, with no residue from their colonial subjection keeping them together. Tucker traced the origin of state sovereignty to the Declaration of Independence itself. “From the moment of the revolution they became severally independent and sovereign states,” bearing all the “rights, jurisdiction, and authority” such status implied and “bound by no ties but of their own creation.” Contrary to the tortuous theories of some nationalists, the Declaration of Independence was not an act of union among the states, but a collective act of separation from the British Empire. The first act of union – the Articles of Confederation, ratified in 1781 – took place five years after the states had declared their independence. The second act of union, the Constitution, simply expanded upon the principles of its predecessor. Since the compact was original, Tucker asserted that the federal government generally had no constitutional authority over the “municipal law,” or common law, of the states. “No case of municipal law can arise under the constitution of the United States, except such as are expressly comprehended in that instrument.” Just as the laws of one nation had no force in another nation, so the laws of one state could not be rightfully imposed on a sister state. The few instances in which the federal government did have authority over state law were to be construed conservatively. “Otherwise,” Tucker warned, “the gradual and sometimes imperceptible usurpations of power, will end in the total disregard of all its intended limitations.”

That the Constitution was “written” was immensely important to Tucker. Like all classical liberals of the age, Tucker believed in the “social contract” – the idea that to secure the benefits of “civil society,” i.e. “the peaceful possession of property, a method of obtaining justice with security, and in short, a mutual defense against all violence from without,” people impliedly assented to government. He noted, however, that America was unique in its written constitutions adopted by the people, as opposed to the British system of unwritten precedents and assumed consent. In these constitutions, the “unalienable” sovereignty of the people was recognized, while governments were relegated from sovereigns to “servants and agents.” Furthermore, the government’s rightful role in society was spelled out in document which anyone – not just arcane legal scholars – could understand. “The advantages of a written constitution, considered as the original contract of society must immediately strike every reflecting mind,” avowed Tucker. “Power, when undefined, soon becomes unlimited; and the disquisition of social rights where there is no text to resort to, for their explanation, is a task equally above ordinary capacities, and incompatible with the ordinary pursuits, of the body of the people.” As an example of the heavy limits which the Constitution placed upon the federal government – “to guard against encroachments on the powers of the several states” – Tucker cites the Ninth and Tenth Amendments. “The sum of all which appears to be,” he concludes of these two cornerstones of the constitution, “that the powers given to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear where the rights of the states or of the people, either collectively, or individually, may be drawn in question.”

The fact that the Constitution was ratified by the states “freely,” “voluntarily,” and “solemnly,” was essential to the nature of the Union it created. It was “free” because it was based upon consent, not coercion. It was “voluntary” because the idea of a new constitution came from separate acts of the state legislatures. It was “solemn” because it was ultimately ratified by popular conventions of the states. To illustrate how the states enacted the Constitution into law, Tucker included Virginia’s ordinance of ratification, in which she stipulated that she retained her sovereign status, issued a declaration of rights, and recommended amendments (some of which were ultimately adapted into the Bill of Rights).

Since the states created the federal government when they ratified the Constitution, Tucker rejected as illogical the ludicrous claim that the federal government was a party to the Constitution. “The federal government can, in no possible view,” Tucker avowed, “be considered as a party to a compact made anterior to its existence, and by which it was, in fact, created.” In fact, as the “creature” of the Constitution, the federal government was “bound” to its creators, the states, its entire existence depending entirely on their consent. “Having no existence but under the constitution,” Tucker explained, “nor any rights, but such as that instrument confers; and those rights being in fact duties; it can possess no legitimate power, but such as is absolutely necessary for the performance of a duty, prescribed and enjoined by the constitution.”

“The constitution of the United States,” concluded Tucker, “then being that instrument by which the federal government has been created; its powers defined, and limited; and the duties, and functions of its several departments prescribed; the government, thus established, may be pronounced to be a confederal republic, composed of several independent, and sovereign democratic states, united for their common defense, and security against foreign nations, and for the purposes of harmony, and mutual intercourse between each other; each state retaining an entire liberty of exercising, as it thinks proper, all those parts of its sovereignty, which are not mentioned in the constitution, or act of union, as parts that ought to be exercised in common.”

In the second section of his commentaries, Tucker analyzed the division of power between the states and the federal government, as well as the division of power among the federal branches. To Tucker the separation of powers between the states and Washington, D.C., was as important of a safeguard to liberty as the checks and balances within the federal government. In general, Southerners like Tucker placed their trust in the separation of powers, while Northerners tended towards checks and balances.

According to Tucker, the federal government’s powers pertained to foreign affairs such as war, peace, and commerce. “The federal government, then, appears to be the agent through which the united republics communicate with foreign nations, and with each other.” States remained in charge of their internal affairs – “domestic economy,” as well as “domestic peace, happiness, or prosperity” – and were responsible for protecting the person and property of their citizens. Today, of course, the states have been reduced to mere administrative provinces of the all-controlling, all-planning, all-seeing, all-knowing supreme government centered in Washington, D.C. – “Mordor on the Potomac,” in the colorful phrasing of conservative commentator Mike Church.

Tucker recognized the states’ right of secession, avowing that the Union was “not a flame by which they have been consumed, nor a vortex in which they are swallowed up.” According to Tucker, “Their submission to its operation is voluntary…Each is still a perfect state, still sovereign, still independent, and still capable, should the occasion require, to resume the exercise of its functions, as such, in the most unlimited extent.” Of course, Tucker hoped that the “the dissolution of the bonds of union” would never come (“far be that period removed when it shall happen,” he said), but nevertheless held that such a course of action would be rightful under the Constitution. To prevent the necessity of secession, Tucker wholeheartedly supported the “removing and punishing” (i.e. impeachment) of politicians guilty of “corruption and mal-administration” – vices which left “unchecked” could culminate in dissolution. “The aggregate of mankind understand their own interest and their own happiness better than any individual,” claimed Tucker. “They can never be supposed to have resigned their right of judging for themselves to any set of men whatsoever; it is a right which can never be voluntarily resigned, though it may be wrested from their hands by tyranny, or violated by the infidelity and perfidy of their servants.”

While the House of Representatives, where each state’s representatives were proportional to her population, represented the people, the Senate represented the states, which was why each state had an equal number of senators irrespective of population. “The senate are chosen to represent the states in their sovereign capacity, as moral bodies, who as such are all equal; the smallest republic, as a sovereign state, being equal to the most powerful monarchy upon earth.” Tucker considered this “one of the happiest traits” of the Constitution, for it prevented a majoritarian tyranny of larger states over smaller states. “Without this equality…the union could not, under any possible view, have been considered an equal alliance between equal states.” Tucker, however, doubted that the United States would exceed half of its current size – to say nothing of its worldwide empire – and thus did not foresee the vast extent to which the North would surpass the South in population, or the attempted exclusion of the South from commonly owned territories.

After these general insights into the relationship between the states and Washington, D.C., Tucker systematically broke down the rightful powers of each branch of the federal government.

Beginning with the legislature, Tucker discussed the limitations on its taxing powers. Since the Constitution was a compact between equals from which all parties were entitled to equal benefits, “indirect” taxes (extracted from the people by an intermediary, e.g. customs) were required to be uniform throughout the United States, and “direct” taxes (extracted directly from the people by the government, e.g. capitation) had to be proportionate to the population. Tucker realized, however, that the despite the required uniformity of indirect taxation, economic differences within the Union made this mandate chimerical. “The inequality of indirect taxes, among states, as well as among individuals, is perfectly unavoidable,” Tucker predicted. “It may in time become so great as to shift all the burdens of government from a part of the states, and to impose them, exclusively, on the rest of the union.” Tucker noted that this shift was already taking place between the North and the South. The industrial North was producing manufactures which the agrarian South was importing in exchange for cash crops. “The northern states, for example, already manufacture within themselves, a very large proportion, or perhaps the whole, of many articles which in other states are imported from foreign parts, subject to heavy duties.” Since federal taxes were predominantly levies on imports – tariffs – the South therefore paid the bulk of federal taxation. “They [the North] are consequently exempted,” Tucker continued, “in the same proportion, from the burden of duties paid on these articles.” Indeed, far from paying taxes, the North was being paid by taxes, which forced up the prices of her foreign competition and freed them to inflate their own prices accordingly. “Hence a considerable inequality already exists between the contributions from the several states,” observed Tucker. “This inequality daily increases, and is indeed daily favored, upon principles of national policy: for whenever any species of manufacture becomes considerable in the United States, it is considered proper to impose what are called protecting duties, upon foreign articles of the same kind.” Tucker’s stepson, John Randolph of Roanoke would argue vehemently against Northern protectionism in his career on Capitol Hill, and his second son, Nathaniel, predicted in an early “science-fiction” novel that the South would ultimately secede in protest of this policy of plunder.

Concerning the legislature’s power of borrowing money, Tucker approved of public debt as a temporary expedient during times of extreme emergency, such as war (which was, to Tucker, an evil to be avoided at all costs). Taxes required to finance a war would be “miserable” and “oppressive,” but debt could ease the burden over time. “On the other hand,” cautioned Tucker, in a direct shot at Alexander Hamilton and the Federalist Party, “where loans are voluntarily incurred, upon the principle that public debt is a public blessing, or to serve the purposes of aggrandizing a few at the expense of the nation, or of strengthening the hands of the government (or more properly, those of a party grasping at power, influence, and wealth), nothing can be more dangerous to the liberty of the citizen, nor more injurious to remotest posterity, as well as to present generations.” Furthermore, under the Constitution, the legislature had the power to coin money and regulate its value. According to Tucker, this meant exactly what it said: “regulating the alloy and value of coin struck by their own authority,” not a central bank excreting billions upon billions in unbacked paper money in order to manipulate interest rates and gin up booms. If Tucker had known that the federal government would one day be printing worthless paper – not “coining” real money from anything of value – to finance its own ballooning debt, then he might have judged the entire American Revolution to have been in vain. Indeed, Tucker judged the First National Bank of his day – a harmless puppy compared to the ravenous wolves of today’s Federal Reserve – as unconstitutional.

Tucker, like most of the Founding Fathers (and unlike today’s pinheaded “patriots”), deplored war, condemning it as “the extremes of human misery and iniquity,” and “the sufferings and calamities of mankind, resulting from the ambition, usurpation, animosities, resentments, piques, intrigues, avarice, rapacity, oppressions, murders, assassinations, and other crimes, of the few possessing power.” The power to declare war was simply too terrible to entrust to one man, especially since kings, presidents, and other executives were prone to conflate their personal glory with the interests of their country. Therefore, the power to declare war belonged solely to the legislature; the president could only command troops in time of war, but never start a war. “The power of declaring war, with all its train of consequences, direct and indirect, forms the next branch of the powers confided to congress; and happy it is for the people of America that it is so vested.” Tucker believed that the people preferred peace to war, and thus the legislature would act as a deterrent against its outbreak. “War would be banished from the face of the earth,” he averred, “were nations instead of princes to decide upon their necessity.” Indeed, ever since the War of Northern Aggression, presidents have been usurping Congress’ constitutional authority and forcing the United States into horrendous wars which could and should have been avoided.

The legislature was authorized to make whatever laws were “necessary and proper” for the exercise of their constitutional powers. Hamilton and the Federalists, eager to grow the government however they could, seized on this “necessary and proper” clause to justify a sweeping array of powers which were completely uncomprehended by the Constitution. Tucker clarified that this clause was meant to affirm “incidental or instrumental powers,” not serve as a “pretext for an assumption of power not specified in the constitution.” So long as men honored their word and heeded their conscience, Tucker believed that the “necessary and proper” clause would not be a problem. Without men of integrity, however, the clause would be perverted to “destroy the effect of the particular enumeration of powers, by which it explains and limits them.” In other words, if the legislature was free to read “implied powers” into that clause, then all constitutional limits on federal power would be essentially voided.

Despite his belief in the virtues of the Constitution, Tucker was not a romantic, but a skeptic when it came to the ability of any constitution to limit a government. “All governments have a natural tendency towards an increase, and assumption of power,” observed Tucker, “and the administration of the federal government has too frequently demonstrated that the people of America are not exempt from this vice in their constitution.” Ultimately, Tucker believed that only the people could protect their lives, liberties, and property by limiting government themselves. “We have seen that parchment chains are not sufficient to correct this unhappy propensity; they are, nevertheless, capable of producing the most salutary effects; for, when broken, they warn the people to change those perfidious agents, who dare to violate them.”

Although Tucker examined all of the specific restrictions on legislative power, his interpretation of the First and Second Amendments are especially valuable today.

To Tucker, the “establishment clause” of the First Amendment prohibited the federal government from establishing an official church and forcing its religion on the people. Referring to the “numberless martyrdoms and massacres which have drenched the whole earth, with blood, from the first moment that civil and religious institutions were blended together,” Tucker concluded, “To separate them by mounds which can never be overleaped, is the only means by which our duty to God, the peace of mankind, and the genuine fruits of charity and fraternal love, can be preserved.” The First Amendment, therefore, had nothing to do with banishing religious expression from the public square; its aim was to preserve freedom of religion rather than guarantee freedom from religion.

Nowadays, U.S. Senators like Lindsey Graham and Dianne Feinstein (pardon my French, but who the hell keeps electing these creeps?) insinuate that the “free speech” clause of the First Amendment does not apply to everyone – namely, “bloggers” outside of the mainstream media and beyond their regulatory tentacles. Fortunately, Tucker insisted that “the right of the people to inquire into, censure, approve, punish or reward their agents according to their merit, or demerit…by speaking, writing, printing, or by any other mode of publishing” is “unlimited.” The free speech of the people and the freedom of the press were absolutely vital in a free country. Indeed, Tucker described freedom of speech as “one of the great bulwarks of liberty,” only denied by “despotic governments.”

Tucker praised the Second Amendment as “the true palladium of liberty.” According to Tucker, self-defense was a natural right, violated by governments for the consolidation of their power over the people. “The right of self-defense is the first law of nature,” asserted Tucker. “In most governments it has been the study of rulers to confine this right within the narrowest limits possible.” The existence of a standing army (a well-trained, well-armed force loyal to the government over the people), combined with popular disarmament, would leave the people unable to resist the depredations of the government. “Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” In the time of Tucker, it was not considered “extremist” to acknowledge the necessity of the people being free to take up arms and overthrow a government grown tyrannous.

After completing his analysis of the legislature – by far, the most prestigious branch of the federal government – Tucker proceeded to the presidency. Today’s presidency – the “leader of the free world,” a swaggering celebrity, busybody, and bully ramming through laws at home and stirring up trouble abroad – bears no resemblance to Tucker’s humble executive. In fact, Tucker denied that the president had any “powers” of his own, preferring to call them “duties.” The president, as the servant of the legislature, had the duty to uphold duly enacted laws, serve as commander-in-chief in times of congressionally declared war, and make treaties and various appointments with the approval of the Senate. Aside from issuing pardons, outside of wartime, the president had very little authority of his own. Tucker, however, still suspected that this was too much power, and personally favored a senatorial committee of executives drawn from different regions of the country.

Last, but not least, Tucker “approached the bench,” so to speak. Tucker had great confidence in the federal judiciary – “calm, temperate, upright, and independent” – as “a necessary check upon the encroachments, or usurpations” from the legislature or presidency. According to Tucker, the secure tenures of judges ensured their independence, freeing them from the “sword” of the executive or the “purse” of the legislature. The jurisdiction of the judiciary covered all cases arising under the Constitution or U.S. law, but Tucker was not opposed to the idea of “judicial review,” either. “If the legislature should pass a law dangerous to the liberties of the people, the judiciary are bound to pronounce, not only whether the party accused hath been guilty of any violation of it, but whether such a law be permitted by the constitution.”

Tucker trusted the judiciary to rule on the constitutionality of federal legislation, but like Thomas Jefferson and James Madison, he objected to the absurdity of trusting the federal government to be the sole judge of the extent of its own powers. Some outside accountability was necessary. Tucker endorsed the concept of “interposition,” specifically citing Madison’s Virginia Resolution of 1798 as an example of the means to which states may rightfully resort when all checks and balances in the federal government fail them. “In case of a deliberate, palpable, and dangerous exercise of other powers, not granted by that compact,” argued Tucker, “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.” If the checks and balances within the federal government ever failed to protect the states from unconstitutional usurpations of power, then the states, as the sovereign parties to the Constitution, were entitled and obligated to protect their liberty on their own.

Near the end of his commentaries, Tucker acknowledged that the “supremacy clause” of the Constitution seemed to consolidate all authority in the federal government, reducing the states to its subjects, but he clarified that the clause only applied to laws which were constitutional. “A law limited to such objects as may be authorized by the constitution, would, under the construction of this clause, be the supreme law of the land; but a law not limited to those objects, or not made pursuant to the constitution, would not be the supreme law of the land, but an act of usurpation, and consequently void.” Unconstitutional legislation were not legitimate laws at all, but acts of aggression without legal force.

Tucker was not a radical outlier, but a respected judge and professor who taught the best and brightest of Old Virginia. His commentaries were not private manifestos, but popular works of political orthodoxy. Tucker did not invent anything, either, but simply codified the prevalent interpretation of the Constitution and understanding of the Union – particularly in the South. Through his writings and teachings, Tucker distilled the widespread recognition of states’ rights into a formal doctrine, which Southerners would invoke as they opposed economic exploitation, territorial discrimination, and puritanical crusades from up North.

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