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NOTE 01. Thomas Jefferson and the Principles of '98 (video)

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This week begins a series of ten lectures on aspects of American history that are interesting to me.

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They are idiosyncratically chosen.

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Well, I should say it's not entirely coincidental.

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The topics are not just random.

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I tended to focus on areas that most seemed to tick people off when my book came out,

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and I want to rub salt in the wound by expanding on them,

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I'm going into much greater detail on subjects that what I find sort of funny is that a lot of my critics seem to know basically nothing about.

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So I want to really drive them crazy talking about things like nullification that you're not supposed to talk about.

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A wonderful experience for me a couple of weeks ago was I was speaking at a conference that was taking place inside one of the house office buildings in Washington D.C.

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and I got up there and gave a talk on nullification and the principles of 1798 and for those of you who don't know what that is, by the time we get to the end of today you know what it is, you'll understand what a glorious moment for me that was to be able to stand up there and say things that were so subversive and yet at the same time so characteristically American, I mean there's the old America right there of Thomas Jefferson.

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All right, well, I'm going to start right in then, talking about the title of this first talk as Thomas Jefferson and the Principles of 98.

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What does that mean? Well, as we go along, you may think that, you know, I don't mean to be insulting your intelligence if I read to you the Supremacy Clause of the Constitution or explain what it is.

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I realize that we have a diverse audience. We have people from other countries. We have the webcast all over the place. I don't want to take anything for granted.

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And in my own background, where I teach, I've got people who would succeed at any college and are very highly skilled, and I have people who, let's just say, aren't so skilled.

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And I've sort of been able to formulate a style that is able to appeal to them all and to explain things to them all.

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and I will be stopping for questions at the end and feel free to ask anything you like and you shouldn't think well you know if I ask this question then he'll think I wasn't listening or this is a silly question I'm telling you I've heard all the silly questions there aren't there really aren't these silly questions because you should you know if you have the question then probably somebody else in the room has it and it could actually just be that I left something out or I was unclear on something it's totally legitimate and in addition to that

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One of the things after you've taught for a number of years that you learn is how to make even a not the best question in the world sound like an intelligent question.

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So somebody asks kind of an odd question. You have this skill of turning it around and making it sound like a brilliant question.

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The only time I was stumped on that was when I was asking students could they list for me one of the rights protected in the Bill of Rights.

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I said the Bill of Rights are the first ten amendments of the Constitution.

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So can you just give me an example of one and I kid you not the students said thou shalt not kill

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So I thought all right the poor kids thinking of the Ten Commandments

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And I'm trying to say ten amendments as clearly as possible and this one. I didn't see how I could turn

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So I just pretended I didn't hear that

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But then he continues shouting out other command you know have no false gods, but I thought

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There's really nothing I can do. So if I say, hey, look over there and I run away, that's a sign that it was a bad question.

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All right. Anyway, let's get started with the year 1798, which is such a critical year in American history because very, very important documents are drafted in that year.

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And you can tell that they are central and important documents, that they are documents in the service of liberty.

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In the late 1790s, diplomatic relations between the United States and France reached a low point.

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They had been deteriorating for several years, and by the later 1790s,

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What developed, what has come to be known among students of American history, is the Quasi-War with France.

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Quasi-War, because it's not a full-fledged declared war on the part of either party.

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It does not involve a massive invasion of one country or the other.

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It is, in effect, a series of naval clashes in which both sides are engaging each other on the seas.

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and the French are in some cases seizing American shipping and so on.

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That's in effect the nature of the quasi-war with France. It is by no means a total war.

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But the United States was on enough of a war footing that President John Adams would go out in public,

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oftentimes with a sword at his side to indicate to people that we're on a sort of quasi-war.

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I don't know what he would have had in a full-fledged war, but a quasi-war apparently equals a sword.

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I don't know if he's expecting to run into a Frenchman, but there you have it.

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So this is going on and the significance of this is some legislation that's passed in 1798,

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passed by the Congress and apparently reluctantly signed by John Adams,

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called the Alien and Sedition Acts of 1798.

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Now, these acts, to make a long story short, do some things along these lines.

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The Alien Acts, for example, one of the features of that, all this is explained in my Chapter 4, at least this part of what I'm saying.

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But among other things, the Alien Act had the function of going after, basically going after aliens in the country who were in some way disloyal,

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or whose political allegiances were not so clear.

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The idea being that during wartime you have to put more controls on people's liberty.

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We've all heard this argument many times.

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And there was a concern that this had a partisan motivation,

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that it was actually aimed at Albert Gallatin,

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who was a Swiss-born important Pennsylvania Republican

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who later became Secretary of the Treasury under Thomas Jefferson.

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This would possibly be used in a partisan way.

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Let's recall that there was a party known as the Federalist Party to which President

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John Adams belonged, to which George Washington had belonged and associated with.

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And there were the Republicans of Thomas Jefferson, not the Republicans of today, of course, but

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the Republicans of Thomas Jefferson, James Madison and the like.

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And there was a concern on the part of the Republicans that the Alien and Sedition Acts

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were really just a grandiose rationalization for criminalizing political opposition and

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tossing Republicans in jail, and particularly the Sedition Act, because the Sedition Act

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in effect criminalizes excessive criticism of the federal government, that if you do

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something that tends to bring the federal government into contempt or disrepute, then

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You could be brought up on charges, you could be fined, you could be tossed in jail, and

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there was a concern that this could be used, again, as a means for the Federalists simply

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to suppress the Republicans.

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And it did happen in some cases.

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There were at least a couple of dozen people imprisoned over this and Republican newspaper

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editors.

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And of course, these newspaper editors believed they were engaging in the normal exercise

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of the freedom of the press, but they were told that, no, in fact, you have crossed the

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Foundry into Seditious Speech.

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Now, Jefferson himself was, of course, Thomas Jefferson was the vice president at the time.

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And this is part of the beauty of the original constitutional structure,

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was that whoever got the most votes in the presidential election was elected the president,

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and whoever got the second most votes was elected the vice president.

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So this sometimes meant that you had, you know, sort of like the odd couple,

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Thomas Jefferson is a Republican, Adams is a Federalist, Jefferson is a Republican, Adams is a Federalist, Jefferson is a Republican, Adams is a Federalist,

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Jefferson is very concerned about this legislation and yet his own president has signed it.

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So he is in a bit of an awkward spot.

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In that it would be a bit unseemly for him to go out on the offensive against it, seeing that he belongs to the very executive branch whose task it is to enforce these laws.

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Well, Jefferson feared the partisan nature of the legislation, certainly, as one of his concerns, that his party would be criminalized in effect.

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There's also some complaining between Jefferson and Madison in their correspondence with each other that somebody is opening their mail.

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So this is quite serious that this is taking place. There was a case of a gentleman who said, and I don't know how the FCC will feel about this, so I'll change the bad word.

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There was one gentleman who said, I hope that President John Adams, I hope that the presidential saluting cannon hits President Adams in the, we'll say, behind.

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And this poor guy was fined $100 for that. So that's what the legislation was about, and as I say, Jefferson feared that it would be used in a partisan way.

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in a partisan way, and if you actually look at section two of the Sedition Act of 1798,

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it is quite clear that you are not to criticize the president, and you are not to criticize

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either house of congress, and so on and so forth. But it skips right over the vice president.

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You can say anything you want to about him. He belongs to the other party. So, I mean,

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the partisan nature of this was not exactly being concealed with terrific energy, and

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Jefferson is not an idiot and could perceive this.

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But of course there's much more at stake than merely partisan politics.

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There's also a constitutional question at stake.

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Now modern students today, when they hear the terms of the Sedition Act of 1798, immediately

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think First Amendment.

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This is a violation of the First Amendment freedom of speech.

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And that was Jefferson's view.

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But apparently at that time that was not the majority view.

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The consensus appears to have been that the First Amendment did not in fact protect seditious

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speech.

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The understanding was that the First Amendment meant that there was, the typical phrase that

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was used, there's no prior restraint when you go to publish.

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That is to say, there's no censorship board that's going to prevent you from publishing

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what you want to publish, so you have free speech.

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But once that speech gets out there, if it's seditious, well then you could get in trouble

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for it.

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But nobody stopped you from publishing it in the beginning.

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That was the understanding of what that meant.

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No prior restraint, but nevertheless you would be held responsible for your speech if it

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were for example seditious.

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And in fact the Sedition Act in some quarters was considered to be a liberalization of the

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understanding of sedition because for one thing truth could be admitted as a defense.

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You could say, well yes I said terrible things about the government, but they do happen to

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be true and under this act you could actually be exonerated if what you said actually turned

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So, Jefferson then fell back on the 10th Amendment, because if the 1st Amendment, there's no absolute consensus on seditious speech vis-a-vis the 1st Amendment, then there's the 10th Amendment.

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Now, the 10th Amendment is absolutely critical, and I assume people in the room know what the 10th Amendment is, but I'm still going to tell you.

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Last month, I was at a private school in Wisconsin called Brookfield Academy.

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I had just given a talk the previous night in Milwaukee and then I spoke to some high schoolers at Brookfield Academy.

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Well, if you live in Wisconsin and you're listening to this and you're not sending your children to Brookfield Academy,

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I don't know what's the matter with you because this place is unbelievable.

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I mean, in between classes, instead of a big jungle with savages screaming and crimes being committed, whatever,

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people are playing a quick game of chess.

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Do you know of typical dorks just like me? Wonderful. Hope they didn't hear that. I mean that in the best possible endearing sense.

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But I asked them, each one of the classes I was in, I said, well, does anybody know what the 10th Amendment says?

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10th Amendment of the Constitution. Thomas Jefferson said it's the cornerstone of the whole document.

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Anybody know what it means? I kid you not. I got this answer.

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The 10th Amendment says that all powers not delegated to the federal government by the states listed in Article 1, Section 8

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and not prohibited to the states, as listed in Article 1, Section 10, are reserved to

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the states and to the people.

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Well, after I regained consciousness, I said, congratulations, that's wonderful, that's

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exactly the answer I want, I'm changing jobs and coming out to Wisconsin, you know, whereas

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typically if you ask that in a college classroom, you know, what is the 10th Amendment, you

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can pretty much hear crickets, no response at all, I don't know what you're talking

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The 10th Amendment, according to Jefferson, is the great cornerstone, and it's often said by people that one of the objections that people originally had to the Constitution was that it lacked a Bill of Rights, but more specific than that, specifically what a lot of people wanted was something like the 10th Amendment, which was a guarantee of self-government, that the states have only delegated to the federal government those powers that are listed in an article

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Article 1, Section 8, they reserve the bulk to themselves.

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So Jefferson applies this to the Alien and Sedition Acts and says, where did the states

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delegate to the federal government the power to criminalize these things?

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Well, nowhere that I can see.

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I don't see it in Article 1, Section 8.

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So therefore, the federal government is usurping a state power.

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So this is Jefferson's argument against the legislation.

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Now what are his options here in terms of this?

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I mean, certainly states could secede from the Union.

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Jefferson believed that. It drives people crazy to point that out, so let me say that

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one more time. Jefferson believed in the right of a state to secede from the Union. He was

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not crazy, he was not a lunatic, he was a rather intelligent man, and he believed this.

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But he wanted to make the point that secession would be a move that you would take really

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only when things had come to an intolerable state. And it would be rash, it would be just

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premature to consider secession at that moment, but Jefferson did have friends, as some of you well know, like John Taylor,

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who were advocating secession even in 1798, saying, you know what, obviously this constitution is not working,

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we in Virginia should withdraw from the Union. Jefferson said, this is not yet the time for that.

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So that's too drastic for something just as this. Jefferson could simply counsel submission to the legislation, you know,

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Let's just go along with it.

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But of course to Jefferson this is unthinkable, because after a great effort we have this

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constitution.

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If we then permit this to take place, an unconstitutional usurpation of state powers, then we've given

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away the whole store.

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That's intolerable as well.

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He could wait for the next election.

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He could wait for 1800 and just elect a new president who might repeal the legislation.

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It's set to expire the day before the next president takes office, so you could just

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I know that you just want to get up and leave, that I would say something like that, but sometimes people vote for dumb people.

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You know, it hasn't happened recently, of course, we haven't had this happen, but this could happen.

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So you can't wait for that necessarily.

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And finally, for people who began to take Jefferson's position, which I'm about to lay out what Jefferson finally decided on,

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the thinking was that if the federal government violates, if some politician, some political leader violates,

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violates or in some way abuses, let's say, one of the delegated powers, one of the powers that the federal government enjoys under Article 1, Section 8.

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If they abuse one of those powers, then you vote them out.

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But if they usurp, if they take over one of the state's reserved powers, well, that's not something you just vote somebody out for.

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I mean, this is something that's a dangerous breach of the Constitutional Compact, and that needs to be met much more swiftly and more resolutely and more immediately.

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So Jefferson came up with an idea that became known as nullification. Nullification was spelled out in a document that Jefferson drafted anonymously in 1798, known as the Kentucky Resolutions of 1798.

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And in the Kentucky Resolutions of 1798, Jefferson is going to lay out the objections to the

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Alien and Sedition Acts and then a possible course of action that the states might consider

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following in order to counter this federal usurpation.

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Constitutions, Jefferson understood, do not enforce themselves.

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If you violate them, there are no fangs that come out and bite you.

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You have to enforce them through vigilance.

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You can't just expect them to be enforced automatically.

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Jefferson proposed basically the following.

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States came before the Federal Government.

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Obviously, this does not need to be explained to anybody

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other than a certain institute out in California that will remain nameless.

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We'll tell you that over lunch if you need to know that.

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The point is the states were obviously there first. They created the federal government and endowed it with certain enumerated powers.

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By the way, whether this actually worked out in the long run can be judged by glancing at the federal government now and seeing,

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is this actually the scrupulously limited government, limiting itself to its delegated powers that the framers envisioned?

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I think it's obvious enough. But Jefferson's view was that the states created the federal government, they sent delegates to a constitutional convention,

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The Constitution, they approved the Constitution, they ratified it state by state, so the constituent

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unit always was understood to be the state.

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Well they have not, according to Jefferson, they have not created a Frankenstein's monster

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that gets to interpret the scope of its own powers and tell the states themselves what

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their own Constitution means.

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If the Federal Government has the final word on the scope of its own powers, if the Federal

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If the federal government gets to be the exclusive judge as to what powers were delegated to it and what not and what the meaning of those words in Article I, Section 8 is then what's going to happen obviously is that the federal government will, given that no one can challenge its interpretation of the Constitution, will interpret that instrument more and more broadly so as to amass more power to the center. So Jefferson's next step was to say states created the federal government, they endowed it with certain limited powers, but if the federal government

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should go beyond the powers that were delegated, then the states have the right to interpret

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the Constitution for themselves and to judge that an infraction has taken place and to

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refuse to enforce the offending law, that is to nullify the offending law.

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It doesn't mean that they would be repealing the law, but they would simply be saying that

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insofar as their state is concerned, the law will not be enforced.

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Now here's how Jefferson words this in one of the passages from the Kentucky resolutions

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of 1798. This is the crux of Jefferson's argument right here. He says,

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the Residuary Mass of Right to Their Own Self-Government

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and that when soever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force.

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That to this compact each state exceeded as a state and is an integral party, its co-states forming as to itself the other party.

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That the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself,

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Since that would have made its discretion, and not the Constitution, the measure of its powers,

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but that as in all other cases of compact, among parties having no common judge,

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each party has an equal right to judge of itself, as well of infractions, as of the mode and measure of redress.

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That's a beautiful passage.

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And by the way, I'm not up here to make fun of my students, because I like them.

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I like them. They're decent kids. It's mostly not their fault that they haven't been taught things, but I used to assign the Kentucky Resolutions of 1798.

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No one can understand this language. In a way, it sort of makes you think, are they trying deliberately to make us dumb so that we can't read Jefferson telling us here,

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Well, the next year, the Kentucky legislature, and by the way, these resolutions are passed by the Kentucky legislature, this was a common thing in colonial times, like the Virginia Resolves against the Stamp Act, when you want to make a statement at the highest level of the state that indicates the opinion of that state at that time, you pass resolutions through the colonial legislature or in this case, the state legislature. Well, the next year, Kentucky legislature,

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If those who administer the general government be permitted to transgress the limits fixed by that compact by a total disregard to the special delegations of power therein contained, an annihilation of the state governments and the creation upon their rulings of a general consolidated government will be the inevitable consequence that the principle and construction contended for

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The several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of the infraction, and a nullification by those sovereignties of all unauthorized acts done under color of that instrument is the rule of law.

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and the rightful remedy.

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All right, well, that's the Kentucky Resolutions of 1798.

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Now, Jefferson is portraying this course of action as the moderate course.

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I mean, today it's extremist and wacko. This was the moderate course.

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It was the middle ground between secession and submission.

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It was a way of telling his friends who he thought,

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He thought some of his friends were too anxious to secede, that here is a way that we can stay in the Union and enjoy whatever benefits accrue to us from that, and not have to give that up, but at the same time be able to resist, and be able to resist usurpations of state powers.

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This is the moderate course. That's the same position that John C. Calhoun took in 1832-33, when some people in South Carolina were saying we need to secede over the tariffs, Calhoun said the moderate approach was nullification.

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There are some people, by the way, who believe in secession and do not believe in nullification.

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They think that nullification is just a crazy idea that can't work, but it does seem to be of a piece.

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The ideas of nullification and secession do seem to derive from the same conceptions of the Federal Union.

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Well, let's also look at the Virginia Resolutions of 1798 drafted by James Madison.

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James Madison, rightly or wrongly, is referred to as the father of the Constitution.

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Madison later came to regret having written this and spent the rest of his career trying to explain that the Virginia resolutions of 1798 did not actually mean what they obviously did mean.

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Partisan humor used to poke a lot of fun at the fact that Madison seemed to be changing his mind.

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There's a whole cottage industry of Madison admirers out there who write books showing that,

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no, Madison was perfectly consistent in his whole career.

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Well, if that's how you want to spend your career, arguing that Madison is totally consistent,

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I mean, I guess it's one way to spend a career.

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But my friend Kevin Gutzman at Western Connecticut State University has argued very much to the contrary.

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But let's look at the Virginia resolutions.

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Madison said,

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and Sovereignty.

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Well, for example, what he's getting at there is that he already sees in the 1790s a trend

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whereby certain general phrases in the Constitution, such as the General Welfare Clause, for example,

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would be interpreted so broadly that the interpretation would permit the Federal Government to exercise

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powers really that were not dreamed of by the framers of the Constitution.

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And what he's saying is that in Article 1, Section 8, that lists the powers of the Congress.

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And if the Federal Government had actually been authorized to put into effect any measure

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that it thought would tend toward the general welfare, then why did they bother specifically

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enumerating the Federal Government's powers if they had whatever power would advance the

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general welfare?

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It seems it would render the specific listing of powers nugatory and absurd.

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Now Madison gets closer to the heart of the matter by saying,

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This assembly, speaking of Virginia, doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact to which the states are parties,

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as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact,

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In the case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties thereto have the right and are in duty bound to interpose for arresting the progress of the evil and for maintaining within their respective limits the authorities, rights and liberties appertaining to them.

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This is really the phrase that is most cited out of the Virginia resolutions.

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That the states have the right and are in duty bound to interpose for arresting the progress of the evil,

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the evil being the usurped power, the usurpation of power,

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and for maintaining within their respective limits the authorities, rights and liberties appertaining to them.

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Now, there's been much written on the differences between the Kentucky resolutions of Jefferson and the Virginia resolutions of Madison.

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There's much that has been written to suggest that Madison is calling for a measure that is not as extreme as what Jefferson is calling for.

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Jefferson expressly calls for nullification, whereas with Madison we have simply the states are duty-bound to interpose.

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He tends to use the term interposition to, in effect, stand between the Federal Government and their people,

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like Arthur Dent standing between the bulldozer and his home.

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There are some geeks in the room with me who recognize Hitchhiker's Guide to the Galaxy references.

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This is an interesting point. It needs to be dwelled upon.

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I think some of this has to do with the fact that later, Madison's protests were so strong,

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that no, I never meant to imply that, that people have taken him at his word.

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Well, I guess he never meant to imply that.

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A better explanation for Madison's later second thoughts comes from Albert Taylor Bledsoe,

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who wrote an important book about secession and the rights of secession after the war between

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the states.

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And Bledsoe said that Madison seemed more anxious in his later years in preserving the

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union than in preserving the consistency of his own thoughts.

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So in later years, he wants to try to hold the union together in anything that would

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to have the states become more and more independent-minded, he wanted to discourage, but again my friend

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Kevin Gutzman who's written, I mean he's been in the Journal of the Early Republic, he's

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been in the Journal of Southern History, I mean all the major journals on this point.

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He points out that scholars who try to claim for Madison a much more moderate ground than

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the radical Jefferson are really on very shaky ground because for example Jefferson had said

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that the states were the ultimate judges both that a violation of the Constitution has occurred

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as well as the mode and measure of redress, how we address this violation.

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And some historians have denied that Madison took that view.

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Well, Gutzman says if Madison really did not believe that the state was the ultimate judge

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of both the violation and the mode of redress, he certainly did not make that clear in either

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the resolutions themselves or the Publius letters.

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A careful reading of them does not leave the impression that Virginia would willingly have

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submitted to continued enforcement of the acts even in the event that no other state

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agreed with it.

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Again from another article of Gutzman, one of Madison's most notable tactical adjustments,

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as the years had gone on, had been his campaign as a retired former president to be cloud

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the events of 1798 by denying they had meant what they plainly had meant.

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And then finally from his article in the Journal of the Early Republic,

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The distinction so often drawn between Jefferson's strident and Madison's moderate tone seems strained.

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There is no difference between null, void and of no force or effect and invalidity between

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nullifying a statue, Jefferson's word, on the one hand, and interposing to prevent its

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In effect, these are the same ideas.

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Now, here's a guy you've never heard of, most people.

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But that's okay, because now we're going to resurrect this poor guy.

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I want to talk briefly in this connection of a figure who is totally forgotten,

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and yet he's a great constitutional legal thinker named Abel Upsher,

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was a Virginia legal thinker who served brief terms as Secretary of the Navy in the early 1840s and as Secretary of State as well.

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He wrote a pamphlet in 1833, and I'll get to a minute why 1833, this is 1798 after all,

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but he wrote a pamphlet in 1833, an exposition of the Virginia Resolutions of 1798.

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It's one of these things that in the 19th century when you write a pamphlet or you write a book,

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the title is a paragraph long, so the title goes on the next three pages, the title of the thing,

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The title of the thing, but just the exposition of the Virginia Resolutions of 1798.

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He's going to look specifically at the Virginia Resolutions of Madison and prove, even in the 19th century,

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prove that they did mean what Jefferson meant in the Kentucky Resolutions.

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Now, Upshur is a fascinating figure whose work needs to be collected into a volume, and I intended to do that at one point.

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I have a bunch of his essays that are from obscure journals in my file cabinet.

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The great book that I'll be talking about probably in the second lecture today that was a line-by-line reputation of Joseph Story's commentaries on the Constitution.

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Upshaw wrote a book in 1840, a brief inquiry into the nature of our federal government, and it just takes Story apart.

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And yet everybody's heard of Story, whereas Upshaw's book, you've got to go on bookfinder.com and shell out 275 bucks to get it.

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It's got to be brought back into print, but now I'm coming to think that I'm never going to have time to get to this.

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So if somebody wants to do this, I've got all this stuff, I can give it to you, take it with my blessing.

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Better that you do it than that it collect dust in my file cabinet.

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But what's interesting is that Upshaw wrote a pamphlet pseudonymously under the name Locke in 1833 on the Virginia resolutions.

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It's never been reprinted. I have a copy of the original 1833 pamphlet. How on earth did I find that?

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I ripped it off from a museum. No, I made that up. That's just not true. I just totally made that up.

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No, actually, one of the beautiful things about being at a university with a great library

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is the discoveries you make just standing around in the stacks.

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I mean, there's no... it's no substitute to use interlibrary loan to get books

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because then you never find all the seven books around the one you wanted.

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Some of them make the one you wanted look like an idiot, you know?

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Sorry, last night I remember hearing Homer Simpson say that he has a backyard that makes his front yard look like an idiot.

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That's a funny way of phrasing that, so it's stayed in my head.

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But in snooping around in the stacks, I found there's a box of old pamphlets.

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And sure enough, there's this pamphlet by Upshur. Of course, it hasn't been touched in years and years.

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And so I probably wasn't supposed to photocopy, because that probably accelerated the decay.

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I'll preserve the thing. I'll get the thing published, for heaven's sake. We'll publish this thing.

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Years later, I haven't done a darn thing on that front.

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I'm going to share with you some things that Upshur said.

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I used to make this part of my assignment in my Foundations of American History course,

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where the paper assignment is, I give you Upshur's work, Upshur's pamphlet,

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and then I give you some speeches by Daniel Webster, who takes the opposite view from Upshur.

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I want you to assess this, and what are they saying, and what is the crux of their disagreement?

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And there's a beautiful assignment, and anybody who is looking for an American history science, it's a beautiful assignment,

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because it's totally non-plagiarizable, because since this pamphlet hasn't been reprinted anywhere, no one's written anything on it.

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So they're going to look all over the internet for Upshur, and they're saying, oh man, I can't find this anywhere.

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No, you can't. I made it that way.

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All right, anyway, Upshur says this, he says in these resolutions, Virginia Resolutions of 1798,

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the following propositions are distinctly affirmed, and he lists five propositions.

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That the Constitution of the United States is a compact between the states as such.

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That the government established by that compact possesses no power whatever,

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except what the plain sense and intention of that compact gives to it.

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That every act done by that government, not plainly within the limits of its powers, is void.

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That each state has a right to say whether an act done by that government is plainly within the limits of its powers or not.

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And finally, that the states are not bound to submit to, but may resist, any act of that government which it shall so decide to be beyond the limits of its powers.

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Now, the question is, in what mode is this resistance to be applied?

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I mean, okay, so he's shown us that the Virginia resolutions are calling for resistance, but what kind of resistance?

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Well, the context and the wording of the resolution make clear that Madison envisions a resistance

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that will preserve the Union unimpaired, but at the same time put down the usurped power.

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and it must be undertaken, the interposition of the state must be undertaken in such a way as to arrest the progress of the evil.

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Now, Upshur says, this is very significant, he says,

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it is to be remarked that we have here a distinct declaration that there is within the Constitution of the United States some principle

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by which the encroachments and usurpations of the Federal Government may be resisted.

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I say within the Constitution and not extra-constitutional and revolutionary,

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which is the argument that you hear today.

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So then Upshur goes and looks at all the different types of resistance

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other than nullification that could exist

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and shows that every single one of them falls short of the criteria laid out by Madison.

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He says, for example, petition and official remonstrances and protests.

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He says this is not resistance at all.

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He says, petition is a simple appeal for mercy and forbearance.

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Petition and protests affirm a right and threaten the enforcement of it, but they do not in

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themselves enforce it, and therefore are not resistance.

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There is, in addition, the appeal to arms, violent resistance.

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But Upsher believes this is only for an extreme case, and certainly, if the usurpations of

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the Federal Government are to be met only by an appeal to arms every single time, either

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we'll just never have peace, or that will be viewed as such an extreme measure that

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no one will ever resist, because most of the time people would just prefer to continue

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living their lives and not be bothered by this type of turmoil.

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Another possibility is repeal of the unconstitutional law by Congress, to try to get the unconstitutional

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law repealed.

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But Upshur says it's not likely this is going to work. It's not likely that the usurper is either going to acknowledge the usurpation or lay down willingly the usurped power.

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And he says you must remember too that the usurper in the present case, he's talking about tariffs in 1833, he says you must remember the usurper in the present case is a majority of the people.

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I should just mention parenthetically that in 1833 Upshur is talking about nullification

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in the context of South Carolina's nullification of what they consider to be unconstitutional

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federal tariff laws.

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And they are appealing to the Virginia-Kentucky resolutions of 1798 in so doing, in nullifying

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federal tariff laws, and so Upshur, in that context, is talking about those resolutions.

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Another possible mode of resistance is to amend the Constitution.

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But again, for Upshur, this misses the point because the problem, he would say, is not

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with the Constitution itself.

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What we want to do is preserve the Constitution, unimpaired as it is.

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The problem is we've had a breach of that instrument.

386
00:40:19.060 --> 00:40:22.260
So an amendment to the Constitution misses the whole point.

387
00:40:22.260 --> 00:40:23.660
And then finally, secession.

388
00:40:23.660 --> 00:40:28.140
We say secession, whatever the legality of it, the point is it does not seem to meet

389
00:40:28.140 --> 00:40:33.220
the conditions called for by Madison because it is not a mode of resistance that preserves

390
00:40:33.220 --> 00:40:34.620
the Union unimpaired.

391
00:40:34.620 --> 00:40:38.820
Instead, it is a running away of the oppressor.

392
00:40:38.820 --> 00:40:45.620
And far from arresting the progress of the evil, by removing a resisting state, it's

393
00:40:45.620 --> 00:40:48.020
actually enabling the evil to continue.

394
00:40:48.020 --> 00:40:51.620
It removes all restraint from the wrongdoer.

395
00:40:51.620 --> 00:40:58.060
So the only option left according to Upshur is nullification.

396
00:40:58.060 --> 00:41:02.420
Madison's language and words do not admit of any other construction, regardless of what

397
00:41:02.420 --> 00:41:04.780
he said later in his life.

398
00:41:04.780 --> 00:41:14.980
Now, a final point from Upshur is that nullification does not proceed upon any supposed right of the state to repeal a constitutional law,

399
00:41:14.980 --> 00:41:24.780
but upon the right of the state to declare that an unconstitutional law really is so, and to refuse obedience to it for that reason.

400
00:41:24.780 --> 00:41:31.980
He says, remember that a law beyond the constitution is no law at all, and there is no right anywhere to enforce it.

401
00:41:31.980 --> 00:41:41.980
The state which refuses to submit to such a pretended law is strictly within the Union because she is in strict obedience to the Constitution.

402
00:41:41.980 --> 00:41:47.980
Now, the other states responded to the Virginia and Kentucky resolutions, at least some of them did.

403
00:41:47.980 --> 00:41:54.980
Most of the southern states did not, but the northern states, a number of them did, and all unfavorably.

404
00:41:54.980 --> 00:42:00.980
Massachusetts issued an official report sharply condemning these ideas,

405
00:42:00.980 --> 00:42:05.740
They're unheard of, they're novelties, they have no place in the American constitutional

406
00:42:05.740 --> 00:42:09.300
tradition, so on and so forth.

407
00:42:09.300 --> 00:42:13.900
This is a point that we'll take up probably tomorrow morning because what we're going

408
00:42:13.900 --> 00:42:19.940
to see is that those states themselves that were so vocal in 1798 about how crazy these

409
00:42:19.940 --> 00:42:27.100
ideas were and no one could possibly use them, within ten years they were using them.

410
00:42:27.100 --> 00:42:32.420
And they were using some of the same language that Virginia and Kentucky used in 1798.

411
00:42:32.420 --> 00:42:36.660
So you get the impression that at least some of the reason they were against the Virginia

412
00:42:36.660 --> 00:42:40.160
and Kentucky resolutions is that they liked the Alien and Sedition Acts.

413
00:42:40.160 --> 00:42:44.780
They were hotbeds of federalism there, they liked the legislation, they didn't like this

414
00:42:44.780 --> 00:42:48.020
proposed means of resisting it.

415
00:42:48.020 --> 00:42:53.020
One of the points that's consistently made in what we've just looked at and in the discussion

416
00:42:53.020 --> 00:42:59.120
and Nullification is the idea that there is no common judge that can adjudicate disputes

417
00:42:59.120 --> 00:43:05.860
between the states and the federal government. And to say that the Supreme Court is a common

418
00:43:05.860 --> 00:43:11.560
judge is to miss the point entirely. Because as Jefferson would say, the Supreme Court

419
00:43:11.560 --> 00:43:15.380
is part of the federal government. I mean, those people get their salaries from the federal

420
00:43:15.380 --> 00:43:22.060
government, they're in the pay of the federal government. That can't be an impartial arbiter

421
00:43:22.060 --> 00:43:25.060
and a dispute between the states and the federal government.

422
00:43:25.060 --> 00:43:30.060
It would be rendering judgment in a case to which it itself is a party.

423
00:43:30.060 --> 00:43:33.060
So in no way can that be considered legitimate.

424
00:43:33.060 --> 00:43:37.060
Jefferson had made this point all along.

425
00:43:37.060 --> 00:43:40.060
You can pursue this.

426
00:43:40.060 --> 00:43:44.060
There's a book from, I believe, the early 90s by Quirk and Bridwell,

427
00:43:44.060 --> 00:43:47.060
if I remember the authors correctly, called Judicial Dictatorship,

428
00:43:47.060 --> 00:43:49.060
published by Transaction.

429
00:43:49.060 --> 00:44:19.060
Jefferson does not believe in judicial review, he doesn't believe the Supreme Court ought to have a monopolistic privilege on interpreting the Constitution because then that simply means that they're running the country because if they get to interpret it and they have the final authoritative word, well then they dictate, they know if they get to say what the Constitution means then they're running the country and it's very dangerous to entrust so few people

430
00:44:19.060 --> 00:44:21.700
with that type of power, so he doesn't like that.

431
00:44:21.700 --> 00:44:25.140
He believes in something called concurrent review,

432
00:44:25.140 --> 00:44:27.540
whereby all three branches of the federal government

433
00:44:27.540 --> 00:44:31.100
have a responsibility to maintain constitutionality.

434
00:44:31.100 --> 00:44:33.500
So that even if the Supreme Court upholds something,

435
00:44:33.500 --> 00:44:35.980
but the president believes it's unconstitutional,

436
00:44:35.980 --> 00:44:37.980
he doesn't have to bow down before the Supreme Court

437
00:44:37.980 --> 00:44:41.340
and say, well, I guess I have to just get rid of my scruples

438
00:44:41.340 --> 00:44:41.940
about this.

439
00:44:41.940 --> 00:44:43.780
The Supreme Court upheld it.

440
00:44:43.780 --> 00:44:47.780
He has a responsibility not to sign it.

441
00:44:47.780 --> 00:44:52.980
And likewise, the Congress should not pass something they believe to be unconstitutional.

442
00:44:52.980 --> 00:44:58.660
So that was Jefferson's take. He does not believe there's a common judge ruling over

443
00:44:58.660 --> 00:45:02.560
that can adjudicate disputes between the states and the federal government. And the Supreme

444
00:45:02.560 --> 00:45:08.100
Court does not count. It would be as if we said, I'm having a dispute with you. How are

445
00:45:08.100 --> 00:45:13.480
we going to resolve it? And I said, well, my brother Sal will adjudicate it. I mean,

446
00:45:13.480 --> 00:45:17.180
you wouldn't agree to that because obviously Sal is going to have a difficult time being

447
00:45:17.180 --> 00:45:44.180
In 1799-1800, it was drafted in late 1799 and then first presented on January 7th, 1800, we have what's sometimes called Madison's Report of 1800, and Madison, in effect, what he's written here is a reply to the replies.

448
00:45:44.180 --> 00:45:49.780
It's a reply to the other states, to the extent that any of them acknowledge the Virginia-Kentucky Resolutions.

449
00:45:49.780 --> 00:45:53.680
They sometimes, as we saw in the case of Massachusetts, issued statements of their own,

450
00:45:53.680 --> 00:46:00.080
where now Virginia is going to reply to these replies and try to clarify its position.

451
00:46:00.080 --> 00:46:04.280
And in that report, Madison says this,

452
00:46:04.280 --> 00:46:08.780
Where resort can be had to no tribunal superior to the authority of the parties,

453
00:46:08.780 --> 00:46:12.980
the parties themselves must be the judges in the last resort,

454
00:46:12.980 --> 00:46:42.980
The States then, being the parties to the constitutional compact and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide in the last resort whether the compact made by them be violated, and consequently that as the parties to it they must decide in the last resort such questions as may be of sufficient magnitude to require their interposition.

455
00:46:42.980 --> 00:47:01.980
From this view of the resolution, it would seem inconceivable that it can incur any just disapprobation from those who, laying aside all momentary impressions and recollecting the genuine source and object of the Federal Constitution, shall candidly and accurately interpret the meaning of the Virginia General Assembly.

456
00:47:01.980 --> 00:47:07.700
If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could

457
00:47:07.700 --> 00:47:13.380
not justify the parties to it in interposing, even so far as to avert the progress of the

458
00:47:13.380 --> 00:47:19.460
evil, and thereby to preserve the Constitution itself, as well as to provide for the safety

459
00:47:19.460 --> 00:47:24.460
of the parties to it, there would be an end of all relief from usurped power, and a direct

460
00:47:24.460 --> 00:47:29.340
subversion of the rights specified or recognized under all the state constitutions, as well

461
00:47:29.340 --> 00:47:37.340
That was a plain denial of the fundamental principle on which our independence itself was declared.

462
00:47:37.340 --> 00:47:40.340
Okay, Madison's report.

463
00:47:40.340 --> 00:47:45.340
Now, as I said, the reaction from the other states largely negative.

464
00:47:45.340 --> 00:47:48.340
We get this Virginia report replying to those.

465
00:47:48.340 --> 00:47:55.340
Now, there are a number of objections to nullification that are raised by these other states and by people to this day.

466
00:47:55.340 --> 00:48:08.340
I don't want to make this whole series totally self-referential, but Chapter 4 of my Politically Incorrect Guide to American History deals with the Principles of 98, which have just totally fallen down the memory hole.

467
00:48:08.340 --> 00:48:18.340
That chapter is sympathetic to these ideas, and you would think I had called for the dismembering of children, given the response I got to it.

468
00:48:18.340 --> 00:48:22.340
These are ideas that were developed by Thomas Jefferson.

469
00:48:22.340 --> 00:48:26.340
What I found is that the critics never wanted to mention Jefferson's name

470
00:48:26.340 --> 00:48:30.340
because Jefferson is really an admired person.

471
00:48:30.340 --> 00:48:34.340
If you mention that Jefferson came up with these ideas,

472
00:48:34.340 --> 00:48:38.340
that might make them seem respectable, so we can't ever mention it.

473
00:48:38.340 --> 00:48:42.340
They're just ideas that just suddenly occurred in American history. They had no source.

474
00:48:42.340 --> 00:48:46.340
They were out there, or Calhoun came up with them, or whatever.

475
00:48:46.340 --> 00:49:16.340
and I suppose when you start saying that they'll just start saying well Jefferson held slaves too and then they'll just change the subject you know but it was these are these are Jefferson's ideas and but anyway these now here are some objections that you you get to to nullification and as I say the objections that I got in in the present tended not to acknowledge the Jeffersonian origin of these ideas basically there is follows and when I use shorthand I say the principles of 98

476
00:49:16.340 --> 00:49:21.180
1998, that's a term that refers to the principles that were laid out in the Virginia-Kentucky

477
00:49:21.180 --> 00:49:25.540
Resolution of 1798. The federal government is limited, it's got just the powers delegated

478
00:49:25.540 --> 00:49:30.680
to it, the states reserve not only the remainder of those powers but also the right to interpret

479
00:49:30.680 --> 00:49:34.960
the Constitution such that if they feel the federal government has violated the Constitution

480
00:49:34.960 --> 00:49:38.460
and usurped one of their powers they can resist through nullification. That's the principles

481
00:49:38.460 --> 00:49:42.260
of 98. And you could just say principles of 98, people would know what that meant. It

482
00:49:42.260 --> 00:49:56.260
Well, one argument, this is one that you hear today, is that, well, wouldn't that mean that some states would be following some laws and some states would be following other laws, or wouldn't that just be chaotic?

483
00:49:56.260 --> 00:50:09.260
Well, yes and no, it would mean that. The way it was envisioned basically was as follows, that you've got a law that states claim is unconstitutional.

484
00:50:09.260 --> 00:50:16.260
and then what they're claiming is that since it's unconstitutional we're not going to enforce it

485
00:50:16.260 --> 00:50:25.260
and what they would do is Calhoun's understanding was that the state would call a special state nullification convention

486
00:50:25.260 --> 00:50:32.260
because as you can read in Gordon Wood and others it was thought in early American history that the people of the states

487
00:50:32.260 --> 00:50:38.260
express their highest sovereign voice through the instrument of a special convention

488
00:50:38.260 --> 00:50:47.260
And that's why they use special conventions to ratify the Constitution, because it's a grave matter, so we use this highest instrument of the sovereignty of the people to accomplish it.

489
00:50:47.260 --> 00:50:53.260
And likewise, nullification is a very grave matter. And so likewise, we appeal to that same sovereign source.

490
00:50:53.260 --> 00:50:58.260
And of course, when the southern states seceded from the Union, what did they do? Special secession convention.

491
00:50:58.260 --> 00:51:04.260
They did the ratification of the Constitution, in effect, in reverse. So you would have this convention, you would decide to nullify or not.

492
00:51:04.260 --> 00:51:18.260
And if a state does in fact vote that way, to nullify whatever the law is, then the understanding is that as of that moment, as far as that state is concerned, the law is to be considered as suspended.

493
00:51:18.260 --> 00:51:28.260
And this in effect also helps to alert the other states if they've been snoozing, to wake them up and say, hey, this is a terrible law, it violates the Constitution, pay attention to it.

494
00:51:28.260 --> 00:51:38.260
Now, if three quarters of the states should, in fact, amend the Constitution so as expressly to give the Federal Government the disputed power,

495
00:51:38.260 --> 00:51:43.260
so that there is no longer any question about an ambiguity that the nullifying state can appeal to,

496
00:51:43.260 --> 00:51:48.260
if they expressly give this disputed power in express language to the Federal Government,

497
00:51:48.260 --> 00:51:56.260
at that point the recalcitrant state that's nullifying it, or states, would be required, in effect, they'd be basically asked,

498
00:51:56.260 --> 00:51:58.260
A similar objection, though, is that it does seem like this would create chaos if the states could nullify federal laws.

499
00:51:58.260 --> 00:52:22.260
A similar objection, though, is that it does seem like this would create chaos if the states could nullify federal laws.

500
00:52:22.260 --> 00:52:23.260
Laws.

501
00:52:23.260 --> 00:52:28.540
Now, in a way, this is kind of a value judgment, because there's always some kind of chaos

502
00:52:28.540 --> 00:52:29.540
in the United States.

503
00:52:29.540 --> 00:52:32.260
It depends on what kind of chaos you like.

504
00:52:32.260 --> 00:52:36.300
Now, James Kilpatrick, who wrote this book called The Sovereign States, it's out of

505
00:52:36.300 --> 00:52:42.980
print, you should get it, and then he later repudiated the book because, you know, it's

506
00:52:42.980 --> 00:52:43.980
typical.

507
00:52:43.980 --> 00:52:49.220
It's like one of, it should be one of Rothbard's laws, you know, is that people who, as time

508
00:52:49.220 --> 00:52:53.720
time goes on, they become more influential in the establishment, they will repudiate

509
00:52:53.720 --> 00:52:59.460
their earlier stuff. I mean, it just, it happens. Well, he repudiated this book, which made

510
00:52:59.460 --> 00:53:03.340
me think it must be great. He's repudiating it because people hate it, it must be wonderful,

511
00:53:03.340 --> 00:53:07.380
it's a great book. But Kilpatrick says that, all right, if you're going to say that it's

512
00:53:07.380 --> 00:53:13.220
chaotic for there to be nullification, well, understand that there is also a kind of chaos

513
00:53:13.220 --> 00:53:18.820
involved when the Federal Government has the power and in effect is enabled to pass

514
00:53:18.820 --> 00:53:30.820
That's unconstitutional laws. I mean, that's a kind of chaos where there really is no fundamental law if the federal government can just, without any penalty, get in the habit and become habituated to passing unconstitutional laws.

515
00:53:30.820 --> 00:53:37.820
That's a kind of disorder as well. Which one is the more dangerous? Okay, which one is the more dangerous? It's a good question.

516
00:53:37.820 --> 00:53:47.820
Now, there's also a value of judgment here from a point of view of libertarians. I mean, my view would be that suppose today we announce that nullification is operative once again,

517
00:53:47.820 --> 00:53:52.820
and the states started nullifying, let's say just at random, every other federal law.

518
00:53:52.820 --> 00:53:55.820
How could this be bad? Would anybody object to this?

519
00:53:55.820 --> 00:53:57.820
Would our lives be ruined by this?

520
00:53:57.820 --> 00:54:02.820
Every other law, it doesn't matter what it is, just at random, every other law, they nullified it.

521
00:54:02.820 --> 00:54:04.820
I see no problem with it.

522
00:54:04.820 --> 00:54:10.820
But the fact is, though, that it actually would probably not lead to some of these wild scenarios

523
00:54:10.820 --> 00:54:16.820
that people have suggested it would, because when you consider this fact,

524
00:54:16.820 --> 00:54:22.820
Secession, certainly, is a more extreme remedy than mere nullification.

525
00:54:22.820 --> 00:54:30.820
And I think it's demonstrable that from the late 18th through the 19th century, through the end of the war between the states,

526
00:54:30.820 --> 00:54:40.820
I do think you can demonstrate that probably a consensus of opinion in the US was that a state does retain a right of secession in an emergency situation.

527
00:54:40.820 --> 00:54:50.820
And I think we can base that on the fact that New England threatened to secede several times, a lot of important figures insisted on the right of secession, and so on and so forth.

528
00:54:50.820 --> 00:54:56.820
I think we can take that position. And we have abolitionists who appeal to the idea of secession, like William Lloyd Garrison.

529
00:54:56.820 --> 00:55:04.820
We have pro-slavery people appealing to secession and supporting it. Free traders supporting it.

530
00:55:04.820 --> 00:55:10.820
So, I mean, you've got all different people supporting the idea of secession.

531
00:55:10.820 --> 00:55:18.820
And yet, the country was not exactly overwhelmed by actual secessions in early American history.

532
00:55:18.820 --> 00:55:24.820
Because most people, I think, do not have much desire to be in a state of crisis for frivolous reasons.

533
00:55:24.820 --> 00:55:29.820
And nullification and secession are very dramatic steps.

534
00:55:29.820 --> 00:55:34.820
But there can be no doubt that the ever-present threat of secession or nullification

535
00:55:34.820 --> 00:55:40.820
does have the salutary effect of restraining the Federal Government's exercise of power.

536
00:55:40.820 --> 00:55:44.820
Let's see, I'm going to skip. I've already talked.

537
00:55:44.820 --> 00:55:49.820
There's no need to dwell too much on Madison's report.

538
00:55:49.820 --> 00:55:54.820
Now, Abel Upsher again, the great Virginian legal thinker, deals with some of these objections

539
00:55:54.820 --> 00:55:58.820
in his great treatment of the subject, and he says this.

540
00:55:58.820 --> 00:56:03.820
He says, if the states no longer wish to remain in union, they will of course separate.

541
00:56:03.820 --> 00:56:11.820
But if they are really desirous to preserve the union, their own interest affords a sufficient pledge that they will not endanger it

542
00:56:11.820 --> 00:56:18.820
by throwing themselves upon their reserved rights except in extreme cases which require it.

543
00:56:18.820 --> 00:56:24.820
The government of the United States is the mere agent of the states for specified purposes

544
00:56:24.820 --> 00:56:29.580
It is inconceivable that the states who appointed that agent for their own use and advantage

545
00:56:29.580 --> 00:56:36.100
would without cause so embarrass its action as to render its agency of no value.

546
00:56:36.100 --> 00:56:41.140
And then he goes on, if the states may abuse their reserved rights in the manner contemplated

547
00:56:41.140 --> 00:56:49.180
by the President, because of course, President Andrew Jackson in 1832 had denounced nullification.

548
00:56:49.180 --> 00:56:52.580
If the states may abuse their reserved rights in this way, the Federal Government on the

549
00:56:52.580 --> 00:57:04.580
On the other hand, may abuse its delegated rights. There is danger from both sides, and as we are compelled to confide in the one or the other, we have only to inquire which is most worthy of our confidence.

550
00:57:04.580 --> 00:57:12.580
It is much more probable, says Upsher, that the Federal Government will abuse its power than that the states will abuse theirs.

551
00:57:12.580 --> 00:57:21.580
And if we suppose a case of actual abuse on either hand, it will not be difficult to decide which is the greater evil.

552
00:57:21.580 --> 00:57:28.580
The state should abuse its right of interposition by arresting the operation of a constitutional law.

553
00:57:28.580 --> 00:57:35.580
The worst that could come of it would be to suspend the operation of the law for a time, as to that state,

554
00:57:35.580 --> 00:57:38.580
while it would have all its effects within the other states.

555
00:57:38.580 --> 00:57:44.580
This would certainly be unjust, he says, but in most cases would be attended with very little practical evil.

556
00:57:44.580 --> 00:57:49.580
Besides, according to the doctrine for which I am contending, this evil would be temporary only.

557
00:57:49.580 --> 00:57:54.580
It must cease in some way or other as soon as the other states act upon the subject.

558
00:57:54.580 --> 00:57:59.580
I acknowledge, however, that it is at best an evil, but it is an evil inseparable from our system

559
00:57:59.580 --> 00:58:03.580
and one which cannot be avoided except by submitting to a greater evil.

560
00:58:03.580 --> 00:58:15.080
Okay, and finally, in terms of objections, I heard this one raised, this was raised by

561
00:58:15.080 --> 00:58:24.220
somebody, I guess I'd written an article, or basically a book review of a great book

562
00:58:24.220 --> 00:58:32.660
by Bill Watkins, and somebody posted it on Free Republic, no snickering people, and somebody

563
00:58:32.660 --> 00:58:40.300
Nobody had said, well, this nullification idea violates the supremacy clause of the Constitution.

564
00:58:40.300 --> 00:58:44.460
Now that, I mean, I can understand, I don't think that's a stupid objection, like self-evidently

565
00:58:44.460 --> 00:58:52.700
idiotic objection, but it begs the question, okay, this is one of my pet peeves, nobody

566
00:58:52.700 --> 00:58:57.140
understands the phrase begs the question, doesn't mean like, I'm begging to ask the

567
00:58:57.140 --> 00:59:01.060
question or dying to ask the question, I'm begging you to ask.

568
00:59:01.060 --> 00:59:07.060
It means that it just glides over the question, it just in effect disregards the fundamental matter at stake.

569
00:59:07.060 --> 00:59:14.060
First let's read the Supremacy Clause and then I'll try to justify my position that nullification is not incompatible with the Supremacy Clause.

570
00:59:14.060 --> 00:59:17.060
From Article 6 of the Constitution we read this.

571
00:59:17.060 --> 00:59:27.060
This Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made or which shall be made under the authority of the United States shall be supreme law of the land

572
00:59:27.060 --> 00:59:34.060
and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

573
00:59:34.060 --> 00:59:36.060
That's the Supremacy Clause.

574
00:59:36.060 --> 00:59:45.060
So the argument would be that if the Constitution is the supreme law of the land and you have one state nullifying a law that is duly promulgated,

575
00:59:45.060 --> 00:59:49.060
then aren't you in fact violating the Supremacy Clause?

576
00:59:49.060 --> 00:59:55.060
Well, the whole point is, does the law itself conform to the Constitution?

577
00:59:55.060 --> 00:59:56.840
That's the question.

578
00:59:56.840 --> 01:00:00.060
This is saying the Constitution and the laws of the United States which shall be made in

579
01:00:00.060 --> 01:00:01.060
pursuance thereof.

580
01:00:01.060 --> 01:00:04.300
Well, what if the law is not in pursuance thereof?

581
01:00:04.300 --> 01:00:06.920
Then the Supremacy Clause does not seem to apply here.

582
01:00:06.920 --> 01:00:10.540
But more than that, the whole question, I mean, you can agree with that statement.

583
01:00:10.540 --> 01:00:13.180
I mean, whether you like the Constitution or not, it's possible you could agree with

584
01:00:13.180 --> 01:00:14.500
that statement.

585
01:00:14.500 --> 01:00:22.140
But then say the whole question is which party gets to decide which powers have been delegated

586
01:00:22.140 --> 01:00:23.140
to the Federal Government.

587
01:00:23.140 --> 01:00:29.140
And according to the Nullification Theorists, the states have to be able to have a voice in deciding that.

588
01:00:29.140 --> 01:00:33.140
This does not really touch the crux of the issue.

589
01:00:33.140 --> 01:00:37.140
This simply says the Constitution is the supreme law. Fine.

590
01:00:37.140 --> 01:00:40.140
But what about the interpretation of that document?

591
01:00:40.140 --> 01:00:44.140
And what about who gets to decide what is the extent of the delegated powers?

592
01:00:44.140 --> 01:00:48.140
That is not addressed in the Supremacy Clause.

593
01:00:48.140 --> 01:00:55.580
Now, I mentioned briefly a book by Bill Watkins. William Watkins has a book called Reclaiming

594
01:00:55.580 --> 01:01:00.180
the American Revolution, and the subtitle is The Kentucky and Virginia Resolutions and

595
01:01:00.180 --> 01:01:07.660
Their Legacy. And it's not a terribly long book, but it's a great book. It's very important.

596
01:01:07.660 --> 01:01:11.580
Unfortunately, it's one of these books that it's published by, you know, Paul Grave McMillan,

597
01:01:11.580 --> 01:01:16.660
wonderful mainstream press, and it's excellent for him that he published with them. But sometimes

598
01:01:16.660 --> 01:01:38.660
How many books in the past 100 years have been written on the Virginia-Kentucky resolutions of 1798?

599
01:01:38.660 --> 01:01:44.660
Just Watkins' book last year. That's it. Absolute silence.

600
01:01:44.660 --> 01:01:49.660
and, you know, I devote a chapter to it and I'm like the great Satan.

601
01:01:49.660 --> 01:01:55.660
You know, I should be writing more about, you know, what about this or that multicultural group and their contributions.

602
01:01:55.660 --> 01:01:58.660
I mean, every book in existence talks about that.

603
01:01:58.660 --> 01:02:03.660
Nobody talks about this and yet it's absolutely fundamental to understanding American history and they don't know it.

604
01:02:03.660 --> 01:02:08.660
And as I say, I think this stuff tomorrow and possibly if I get to it this afternoon, I think you'll agree with me.

605
01:02:08.660 --> 01:02:10.660
This is very, very important material.

606
01:02:10.660 --> 01:02:18.340
Well, the last point that I'm going to make today, or this series of points, involves

607
01:02:18.340 --> 01:02:20.260
where these ideas came from.

608
01:02:20.260 --> 01:02:23.940
They didn't just come fully formed out of Jefferson's head.

609
01:02:23.940 --> 01:02:28.300
And here's stuff that is really, I think, sort of cutting edge in terms of the scholarship

610
01:02:28.300 --> 01:02:30.700
on this.

611
01:02:30.700 --> 01:02:34.740
Because although there haven't been terribly many books on it, there have been some excellent

612
01:02:34.740 --> 01:02:36.100
journal articles.

613
01:02:36.100 --> 01:02:41.060
And here I must again defer to my friend Kevin Gutzman, and I will give you the citations

614
01:02:41.060 --> 01:02:46.780
for this, or anybody listening can write to me and I'll email them to you. But Gutzman's

615
01:02:46.780 --> 01:02:51.460
got this book coming out in, I don't know what the date is, but sometime in the future

616
01:02:51.460 --> 01:02:56.620
from University of Virginia Press. He's absolutely excellent. I mean, I think he's one of the

617
01:02:56.620 --> 01:03:03.460
most underrated historians there is. I mean, he's been making tremendous discoveries and

618
01:03:03.460 --> 01:03:18.460
What Gutzman has argued in a series of journal articles, most recently I think it was the Journal of Politics, if I remember correctly,

619
01:03:18.460 --> 01:03:28.460
he's arguing that you can actually date these ideas, or at least the germ of these ideas, to the Virginia Ratifying Convention.

620
01:03:28.460 --> 01:03:35.180
1788, Virginia is having their convention, as the other states were, to decide whether

621
01:03:35.180 --> 01:03:37.620
or not they're going to ratify the Constitution.

622
01:03:37.620 --> 01:03:43.500
Well, at that convention, Patrick Henry, who was, of course, the great hero of the Stamp

623
01:03:43.500 --> 01:03:50.300
Act crisis, expressed his fear that, for example, the necessary and proper clause of the Constitution,

624
01:03:50.300 --> 01:03:54.460
which of course said the Federal Government would have all powers necessary and proper

625
01:03:54.460 --> 01:03:57.900
to carry into effect the powers granted in Article I, Section 8.

626
01:03:57.900 --> 01:04:04.900
He was afraid this clause would inevitably be interpreted by the federal government as a boundless grant of power

627
01:04:04.900 --> 01:04:08.900
transforming the limited government that supporters of the Constitution promised

628
01:04:08.900 --> 01:04:13.900
into an unlimited government that would menace the people's liberties.

629
01:04:13.900 --> 01:04:17.900
He was likewise concerned about the general welfare clause

630
01:04:17.900 --> 01:04:24.900
since government could, of course, justify practically any action it might take by some strained reference to the general welfare.

631
01:04:24.900 --> 01:04:37.900
Well, here's the significance. At that convention, Edmund Randolph stands up. Edmund Randolph, Virginia Governor, he'd been Attorney General for Virginia, he becomes the first U.S. Attorney General.

632
01:04:37.900 --> 01:04:47.900
Randolph, who was really the leading Federalist that is pro-Constitution speaker at the convention, got up and said that Patrick Henry's fears were unfounded.

633
01:04:47.900 --> 01:05:02.900
He said those phrases could not have the expansive meaning that Henry attached to them, because, according to Randolph, the only powers possessed by the Federal Government would be those expressly conceded to it by the states.

634
01:05:02.900 --> 01:05:12.900
And he used the word expressly, and that was the understanding of Virginians when they ratified the Constitution, that the Federal Government would have only those powers expressly delegated.

635
01:05:12.900 --> 01:05:22.900
He said, all rights are therein declared to be completely vested in the people unless expressly given away.

636
01:05:22.900 --> 01:05:26.900
Can there be a more pointed or positive reservation?

637
01:05:26.900 --> 01:05:32.900
Therefore, you won't be able to just take these open-ended phrases and make them into whatever you like

638
01:05:32.900 --> 01:05:37.900
because the Federal Government has only those powers that are expressly granted.

639
01:05:37.900 --> 01:05:43.900
And you won't be able to just take phrases and start growing interpretations out of them.

640
01:05:43.900 --> 01:05:49.900
So that was the nature of Randolph's response.

641
01:05:49.900 --> 01:05:51.900
And then he went on to say this,

642
01:05:51.900 --> 01:05:55.900
If I did believe, with the honorable gentleman,

643
01:05:55.900 --> 01:05:59.900
that all power not expressly retained was given up by the people,

644
01:05:59.900 --> 01:06:01.900
I would detest this government.

645
01:06:01.900 --> 01:06:03.900
So in other words, if I believed the opposite,

646
01:06:03.900 --> 01:06:05.900
that unless the people expressly retain a power,

647
01:06:05.900 --> 01:06:10.260
of Power, the presumptions that the government has it, well, I would detest this government.

648
01:06:10.260 --> 01:06:13.380
But I never thought so, nor do I know.

649
01:06:13.380 --> 01:06:18.660
And now here's the crux, because Randolph is on a committee of five people whose task

650
01:06:18.660 --> 01:06:24.100
it is to draft an instrument of ratification of the Constitution, that is the document

651
01:06:24.100 --> 01:06:26.260
that will accompany their ratification.

652
01:06:26.260 --> 01:06:30.780
It's Randolph's task and that of George Nicholas, we'll talk about in a minute, John Randolph's

653
01:06:30.780 --> 01:06:33.980
on this committee, James Madison's on this committee.

654
01:06:33.980 --> 01:06:40.420
The purpose is to draft an instrument of ratification so that as they ratify, Virginia will be declaring

655
01:06:40.420 --> 01:06:47.420
for everyone to see the understanding that they put on the Constitution and their understanding

656
01:06:47.460 --> 01:06:51.820
about what they are getting themselves into by doing this. Randolph is talking about this

657
01:06:51.820 --> 01:06:57.400
when he says, if in the ratification, so in the instrument of ratification, we put words

658
01:06:57.400 --> 01:07:04.320
to this purpose, that all authority not given is retained by the people, and may be resumed

659
01:07:04.320 --> 01:07:09.600
when perverted to their oppression, and that no right can be cancelled, abridged, or restrained

660
01:07:09.600 --> 01:07:13.560
by the Congress or any officer of the United States.

661
01:07:13.560 --> 01:07:21.060
I say if we do this, I conceive that as this style of ratification would manifest the principles

662
01:07:21.060 --> 01:07:26.400
on which Virginia adopted it, we should be at liberty to consider, as a violation of

663
01:07:26.400 --> 01:07:32.800
of the Constitution, every exercise of a power not expressly delegated therein.

664
01:07:32.800 --> 01:07:34.240
I see no objection to this.

665
01:07:34.240 --> 01:07:38.400
It is demonstrably clear to me that rights not given are retained and that liberty of

666
01:07:38.400 --> 01:07:41.400
religion and other rights are secure.

667
01:07:41.400 --> 01:07:45.960
So this is the understanding that Virginians are going to have when they ratify the Constitution,

668
01:07:45.960 --> 01:07:51.200
that it's a limited government and that it has only those powers expressly delegated

669
01:07:51.200 --> 01:07:53.200
to it.

670
01:07:53.200 --> 01:07:55.560
Now another member of the committee was George Nicholas.

671
01:07:55.560 --> 01:07:58.680
Now these figures, they're significant people. George Nicholas is going to become the first

672
01:07:58.680 --> 01:08:06.600
Attorney General of the new state of Kentucky. Edmund Randolph had credentials a mile long.

673
01:08:06.600 --> 01:08:09.880
Their opinions mean something and they mean all the more given that they're on the committee

674
01:08:09.880 --> 01:08:15.280
to draft the ratification instrument. Nicholas told the convention that if Virginia didn't

675
01:08:15.280 --> 01:08:20.480
ratify the Constitution, it would ratify it on the basis of its understanding of that

676
01:08:20.480 --> 01:08:28.680
If thirteen individuals are about to make a contract, and one agrees to it, but at the

677
01:08:28.680 --> 01:08:35.560
same time declares that he understands its meaning, signification and intent to be what

678
01:08:35.560 --> 01:08:40.880
the words of the contract plainly and obviously denote, that it is not to be construed so

679
01:08:40.880 --> 01:08:46.320
as to impose any supplementary condition upon him, and that he is to be exonerated from

680
01:08:46.320 --> 01:09:11.320
Now, Nicholas was understood to be a spokesman for Madison, and he explains the constitution like this.

681
01:09:11.320 --> 01:09:20.320
like this. Randolph believes that implicitly the Constitution holds this. Nicholas is saying,

682
01:09:20.320 --> 01:09:25.960
and as does Randolph later, that our ratification instrument will make it as clear as day, render

683
01:09:25.960 --> 01:09:30.940
it totally explicit, that we are ratifying the Constitution as a kind of a league among

684
01:09:30.940 --> 01:09:39.180
states and we reserve rights to ourselves, to judge, and in fact even to recall powers

685
01:09:39.180 --> 01:10:01.180
So, what Gutzman's argument is that in the Virginia ratifying convention, they draft an instrument of ratification that makes clear the nature of the union as Virginia understands it, the terms on which they're entering, that they understand this not as being absorbed into one big aggregated people, but as a league of states.

686
01:10:01.180 --> 01:10:07.180
They say this expressly and the people who are saying this are Federalists.

687
01:10:07.180 --> 01:10:12.180
They're supporters of the Constitution. These aren't anti-Federalist people who are suspicious of the Constitution.

688
01:10:12.180 --> 01:10:20.180
This is Edmund Randolph, the very, very prominent Federalist at the ratifying convention.

689
01:10:20.180 --> 01:10:24.180
So, in fact, these ideas are deriving from them.

690
01:10:24.180 --> 01:10:33.900
Now, within months of the new constitution coming into effect, already there are Virginians

691
01:10:33.900 --> 01:10:37.260
who are concerned about the direction the Federal Government is taking.

692
01:10:37.260 --> 01:10:43.060
They don't like Hamilton's program, they don't like his assumption of the state debts, which

693
01:10:43.060 --> 01:10:48.420
they don't, it's not clear that constitutionally he has the authority to do that, etc.

694
01:10:48.420 --> 01:10:56.820
In 1790, Patrick Henry drafted a resolution in Virginia that expressed the radical state's

695
01:10:56.820 --> 01:11:03.180
rights position that was asserted at the ratifying convention, that was promised to the delegates

696
01:11:03.180 --> 01:11:05.820
there by Randolph, would be the understanding.

697
01:11:05.820 --> 01:11:13.100
This was renewed and reinforced in the resolution that was adopted by the Virginia legislature

698
01:11:13.100 --> 01:11:17.220
and it's taken right out of the ratifying convention.

699
01:11:17.220 --> 01:11:23.220
He says that, remember, we enter this union on the understanding you have only the powers expressly delegated to you

700
01:11:23.220 --> 01:11:29.220
and I don't see that you have the power to do the things, the economic things you've started to do.

701
01:11:29.220 --> 01:11:32.220
Now, here's how Gutzman concludes. He says,

702
01:11:32.220 --> 01:11:38.220
The pedigree of the principles of 98 can be traced through James Madison and Thomas Jefferson in 1798

703
01:11:38.220 --> 01:11:42.220
to Patrick Henry in this resolution and ultimately to Edmund Randolph.

704
01:11:42.220 --> 01:11:47.620
was he who paved the road to Virginia ratification by assuring his fellow members of the Virginia

705
01:11:47.620 --> 01:11:52.900
elite that the Constitution they were being asked to ratify in the summer of 1788 would

706
01:11:52.900 --> 01:11:57.220
have very limited significance, that it was more another league of sovereign states than

707
01:11:57.220 --> 01:12:02.820
a consolidated union they would be entering. What had been portrayed as extremist and anti-Federalist

708
01:12:02.820 --> 01:12:07.740
principles then were not extremist or anti-Federalist in their origins at all. They were the products

709
01:12:07.740 --> 01:12:10.420
of the Most Moderate of Federalists.

710
01:12:10.420 --> 01:12:15.420
So the idea again is that the ratification of the Constitution of Virginia would also

711
01:12:15.420 --> 01:12:23.060
be accompanied by a statement of what that convention understood to be a statement of

712
01:12:23.060 --> 01:12:26.540
what ratification meant, and it would be a binding statement.

713
01:12:26.540 --> 01:12:34.860
Okay, let's see, oh and incidentally, we also know in the 1790s, I also make note of John

714
01:12:34.860 --> 01:12:40.980
John Taylor, who's a great political thinker. The running joke about him was that he wrote

715
01:12:40.980 --> 01:12:45.060
in such an obscure manner and difficult to follow that John Randolph used to say John

716
01:12:45.060 --> 01:12:48.800
Taylor needs to be translated into English because you can't follow anything. He's like

717
01:12:48.800 --> 01:12:53.780
reading a modern philosophical journal or something with apologies to Kevin, Kevin Vallier

718
01:12:53.780 --> 01:12:59.820
out here. But anyway, not the most elegant, let's say, most elegant turns of phrase, but

719
01:12:59.820 --> 01:13:04.660
Taylor was a friend of Jefferson's who wrote a number of really important, one of his books

720
01:13:04.660 --> 01:13:16.220
in the 1790s, Taylor began to argue that to protect the states from the usurpations of

721
01:13:16.220 --> 01:13:22.140
the federal government, the state legislatures need to protect them, need in effect to interpret

722
01:13:22.140 --> 01:13:23.140
the Constitution.

723
01:13:23.140 --> 01:13:28.260
So I mean, in effect, he's beginning to hammer out a kind of understanding of nullification.

724
01:13:28.260 --> 01:13:31.900
He doesn't come up with this special state convention idea, but he's moving in that

725
01:13:31.900 --> 01:13:32.900
direction.

726
01:13:32.900 --> 01:13:36.900
Well, finally, Thomas Jefferson, later on in his career, said,

727
01:13:36.900 --> 01:13:40.900
When all government, domestic and foreign, in little as in great things,

728
01:13:40.900 --> 01:13:44.900
shall be drawn to Washington as the center of all power,

729
01:13:44.900 --> 01:13:48.900
it will render powerless the checks provided of one government on another,

730
01:13:48.900 --> 01:13:52.900
and the checks provided of the government on another,

731
01:13:52.900 --> 01:13:56.900
and the checks provided of the government on another,

732
01:13:56.900 --> 01:14:00.900
and the checks provided of the government on another,

733
01:14:00.900 --> 01:14:08.660
of One Government on Another, and will become as venal and oppressive as the government from which we separate.

734
01:14:08.660 --> 01:14:15.900
Now Jefferson, in a statement like that, makes clear that it is not enough simply to have three branches of government.

735
01:14:15.900 --> 01:14:23.700
You know, hey, we've got the... I get this all the time on exams, that how's the federal government kept limited?

736
01:14:23.700 --> 01:14:28.900
And I get told, well, we've separated the executive, legislative and judicial branches,

737
01:14:28.900 --> 01:14:32.100
and so they can't encroach upon each other's prerogatives.

738
01:14:32.100 --> 01:14:36.460
All right, okay, that's been done, but so what?

739
01:14:36.460 --> 01:14:38.340
I mean, why would that keep the government limited?

740
01:14:38.340 --> 01:14:40.440
I mean, it might mean that, I mean,

741
01:14:40.440 --> 01:14:42.820
I understand the Montesquieu position on this,

742
01:14:42.820 --> 01:14:44.800
that I understand why it makes sense

743
01:14:44.800 --> 01:14:47.460
that you don't want the same person drafting the law

744
01:14:47.460 --> 01:14:50.300
as enforcing it or drafting it as interpreting it

745
01:14:50.300 --> 01:14:51.460
because then you just interpret it

746
01:14:51.460 --> 01:14:52.880
so as to exclude yourself.

747
01:14:52.880 --> 01:14:54.060
I understand that.

748
01:14:54.060 --> 01:14:55.660
There's nothing about that that inherently keeps

749
01:14:55.660 --> 01:14:56.860
the federal government limited.

750
01:14:56.860 --> 01:14:58.540
I mean, what happens if the three branches,

751
01:14:58.540 --> 01:15:02.940
As Jefferson said was happening in 1825, he said the three branches are just ganging up

752
01:15:02.940 --> 01:15:06.940
on the American people, and they're ganging up on the states, what's to stop that?

753
01:15:06.940 --> 01:15:12.020
Well that shows that what you need are checks by the states.

754
01:15:12.020 --> 01:15:17.240
The states need to have some way in a corporate manner, not just as a bunch of scattered individuals

755
01:15:17.240 --> 01:15:21.860
who haven't got a chance against the federal government, but in their capacity as states,

756
01:15:21.860 --> 01:15:25.940
they have to have some way to keep federal power in check, or otherwise you are going

757
01:15:25.940 --> 01:15:32.180
to get exactly what Jefferson warned about, which is a government where all powers drift

758
01:15:32.180 --> 01:15:34.980
to the center.

759
01:15:34.980 --> 01:15:39.420
That was what Jefferson was trying to warn about, and he proposed this idea of nullification

760
01:15:39.420 --> 01:15:44.780
as the only way that he could see, and that followers in the tradition could see, as a

761
01:15:44.780 --> 01:15:48.980
way to keep the federal government in check, if that's even possible.

762
01:15:48.980 --> 01:15:53.140
But at least to try, or at least hold it off as long as possible, it seems that some form

763
01:15:53.140 --> 01:16:01.140
Problem of Nullification is necessary, yet today even to raise the issue is to be called

764
01:16:01.140 --> 01:16:05.340
all kinds of names and, you know, accused of this and that and being an extremist or

765
01:16:05.340 --> 01:16:10.180
whatever, but that I think more than anything else tells us about our present political

766
01:16:10.180 --> 01:16:11.180
condition.

767
01:16:11.180 --> 01:16:14.740
Okay, well I'll be happy to take some questions then at this point.

768
01:16:14.740 --> 01:16:19.100
Yes, let me put my glasses back on so you're not just a bunch of blurs.

769
01:16:19.100 --> 01:16:20.100
Okay.

770
01:16:20.100 --> 01:16:21.100
Yes.

771
01:16:21.100 --> 01:16:45.100
Do you think that Madison's thinking sort of went in an art from when he wrote The Federalist to The Principles of 1998, and then later on, you know, sort of going back to where he was in The Federalist, because, you know, he talked about the government would be both national and federal, which really doesn't make a lot of sense, but I mean, do you think that really squares with what he wrote in The Virginian Way?

772
01:16:51.100 --> 01:16:56.100
The question involves the trajectory of Madison's thought.

773
01:16:56.100 --> 01:16:58.100
Does it seem that he moves in an arc?

774
01:16:58.100 --> 01:17:01.100
He's sort of a nationalist around the time of the convention,

775
01:17:01.100 --> 01:17:06.100
and at one point at the convention he even said that the Congress,

776
01:17:06.100 --> 01:17:09.100
the Federal Congress, should have a veto over state laws,

777
01:17:09.100 --> 01:17:12.100
which was totally rejected.

778
01:17:12.100 --> 01:17:18.100
But then you get the Virginia resolutions where he's a big decentralist,

779
01:17:18.100 --> 01:17:29.100
And then later in his life he's he's pro-centralist again and does it seem like he moves in a kind of an arc and it does seem that way to me, as I say, I know there are people who try to square this circle.

780
01:17:29.100 --> 01:17:39.100
I remember when I was getting ready for my general exams in grad school I read this book by Lance Banning on Madison, one of the great authorities on Madison, called The Sacred Fire of Liberty.

781
01:17:39.100 --> 01:17:44.100
and he tries to make a strained argument that there is no inconsistency in Madison at all,

782
01:17:44.100 --> 01:17:51.100
that there are just different, he has the same, he just had different emphases on his philosophy at different times,

783
01:17:51.100 --> 01:17:53.100
but that ultimately he's internally consistent.

784
01:17:53.100 --> 01:17:56.100
To me, since I have no particular dog in this hunt one way or the other,

785
01:17:56.100 --> 01:17:59.100
if it turns out that Madison really is secretly consistent,

786
01:17:59.100 --> 01:18:03.100
but you just need to be some kind of a cryptographer to figure it out, that's fine with me,

787
01:18:03.100 --> 01:18:05.100
I mean it doesn't matter to me, I could be wrong on this,

788
01:18:05.100 --> 01:18:13.100
Madison goes also on his interpretation of the Constitution. He's against the National Bank.

789
01:18:13.100 --> 01:18:18.100
Then he's in favor of the National Bank, because of the feebleness of the...

790
01:18:18.100 --> 01:18:25.100
During the War of 1812, you start thinking, boy, National Bank is a wonderful thing now.

791
01:18:25.100 --> 01:18:28.100
You start thinking, because the New England banks won't lend us any money,

792
01:18:28.100 --> 01:18:34.100
and so he suddenly becomes in favor of the bank, but then before he leaves, he vetoes the bonus bill,

793
01:18:34.100 --> 01:18:40.100
Bill, which would have applied federal monies to road and canal building on extremely strict

794
01:18:40.100 --> 01:18:44.100
constructionist grounds, on the same grounds that he once rejected the bank.

795
01:18:44.100 --> 01:18:50.060
He says that you can't appeal to the General Welfare Clause here because then that would

796
01:18:50.060 --> 01:18:53.460
mean that there was no point in listing the specific powers of the federal government

797
01:18:53.460 --> 01:18:55.900
if it could do anything for the general welfare.

798
01:18:55.900 --> 01:18:58.980
Roads and canals might be for the general welfare, but in that case you have to amend

799
01:18:58.980 --> 01:18:59.980
the Constitution.

800
01:18:59.980 --> 01:19:20.980
Do you attribute Madison's backpedaling on the Virginia resolutions later on to the fact that his guys were in power?

801
01:19:29.980 --> 01:19:44.980
The question was, does Madison's change of mind and backpedaling from the Virginia Resolutions have something to do with the fact that his guys came into power and now there's less need for vigilance?

802
01:19:44.980 --> 01:19:47.980
I think to some degree that is correct. Yes?

803
01:19:47.980 --> 01:19:57.980
Often times, secession arguments are made from a philosophy of natural rights, where people are appealing to some sort of broader methodical apparatus in order to identify the tradition.

804
01:19:57.980 --> 01:20:08.980
And I wonder if nullification was seen in a similar way, or whether it was seen as more conventional, like, will appeals become a law, or whether there is a tradition of this going back.

805
01:20:08.980 --> 01:20:15.980
So, is it more like a legal code kind of idea, or is this the same kind of radicalism that we see in arguments for secession?

806
01:20:17.980 --> 01:20:37.980
The question is, is nullification, are the arguments for it advanced in terms of it being some kind of an abstract, some kind of appeal to abstract natural rights, or is it viewed as being something conventional?

807
01:20:37.980 --> 01:20:43.380
So, in other words, because the secession argument, for instance, people who are Straussians,

808
01:20:43.380 --> 01:20:49.740
I have to use this perfect example, will say that there's no constitutional right to secede.

809
01:20:49.740 --> 01:20:55.700
All there is is a natural right to have a revolution, to overthrow the government.

810
01:20:55.700 --> 01:21:00.160
But there's nothing that, within the law, permits secession, and that it would be absurd

811
01:21:00.160 --> 01:21:06.380
to say so, whereas the Southern Confederacy and other people would say that there is a

812
01:21:06.380 --> 01:21:07.380
Constitutional Rights.

813
01:21:07.380 --> 01:21:11.900
We're not just appealing to abstract principles as useful as abstract principles are, but

814
01:21:11.900 --> 01:21:16.020
we also have legal rights and they appeal to the 10th Amendment.

815
01:21:16.020 --> 01:21:20.420
We never delegated any power to suppress secession, so therefore it's not a power the federal

816
01:21:20.420 --> 01:21:21.420
government has.

817
01:21:21.420 --> 01:21:26.300
They can't suppress it, so we have to be allowed to secede.

818
01:21:26.300 --> 01:21:31.940
So as far as nullification goes, it seems to me that by and large they are making a

819
01:21:31.940 --> 01:22:01.940
In other words, for example, what we just looked at here, Upshur, in his pamphlet, says that this is a mode of redress that he conceives of as being under the Constitution, not being extra-constitutional or a revolutionary right, and given that you can actually trace out a lineage of thought, given that this lineage of thought, that the states have all these residuary powers and they have this right of judging, and that goes all the way back to

820
01:22:01.940 --> 01:22:31.940
to the Virginia Ratifying Convention, you can see the development of a line of thought that is sort of legalistic, that says these are the terms on which we ratify the Constitution, this is the understanding we were given of that document, and nullification just develops from the understanding that we were given at that time, I think there's a desire to appeal to law as much as possible because opponents of nullification were trying to make it seem like just an abstract right that has no basis in anything specific

821
01:23:01.940 --> 01:23:06.040
to claim to secede than the colonies did to withdraw from the British Empire because the

822
01:23:06.040 --> 01:23:10.420
colonies had, I mean, there was no legal tradition that they could appeal to, oh, we have the

823
01:23:10.420 --> 01:23:12.380
right to withdraw.

824
01:23:12.380 --> 01:23:17.460
That was entirely a natural rights position that you've encroached on our powers and it's

825
01:23:17.460 --> 01:23:20.060
terrible and we're getting out of here.

826
01:23:20.060 --> 01:23:24.860
Whereas with the southern states, they have that, they can fall back on that, but they

827
01:23:24.860 --> 01:23:29.600
can also make, whether you accept it or not, the fact is they can at least make a plausible

828
01:23:29.600 --> 01:23:32.520
In the United States, the United States has a very strong legal argument that is based

829
01:23:32.520 --> 01:23:33.520
legally.

830
01:23:33.520 --> 01:23:36.120
And I'm sorry by the way, my tendency is to pace back and forth, so I don't know if I'm

831
01:23:36.120 --> 01:23:37.120
jumping out of frame.

832
01:23:37.120 --> 01:23:38.120
Okay, that's good.

833
01:23:38.120 --> 01:23:39.120
Okay, any other, yes sir?

834
01:23:39.120 --> 01:23:40.120
In units just now about the argument about the colonies, I remember that Virginia took

835
01:23:40.120 --> 01:23:41.120
a different argument when they claimed that they recognized Charles as King of England

836
01:23:41.120 --> 01:23:42.120
before England did, Charles King of Virginia.

837
01:23:42.120 --> 01:23:43.120
And they said that they had the rights, because they had dominion status.

838
01:23:43.120 --> 01:23:44.120
So I was wondering if you could comment on that.

839
01:23:44.120 --> 01:23:45.120
Yeah, that's true.

840
01:23:45.120 --> 01:23:46.120
Yeah.

841
01:23:46.120 --> 01:23:54.120
Virginia took a different argument when they claimed that they recognized Charles was king of England before England did, Charles was king of Virginia.

842
01:23:54.120 --> 01:23:58.120
And they said that they had the rights, because they had dominion status. Those are the ones that...

843
01:23:58.120 --> 01:24:04.120
Yeah, that's true. Yeah, that's actually true. And it's interesting that Virginia actually declared independence.

844
01:24:04.120 --> 01:24:13.120
They feel that they actually declared independence in June 1776. So, you know, sort of like yawn when July 2nd and then July 4th comes along.

845
01:24:13.120 --> 01:24:42.120
Yeah, that's true. A useful document to read on how Virginia conceived of itself, which I think also, in some way, there's a kinship with the ideas I've looked at here, is by Richard Bland, who wrote a document in 1765 that, naturally now with the cameras on and everything, I can't think of the name of it, but I'll tell you the beginning and next time, where he fleshes all this out in a lot of detail.

846
01:24:42.120 --> 01:24:50.120
If the Constitution is of no authority, like I said, to the Senator Spooner, with respect,

847
01:24:50.120 --> 01:25:00.120
and I'm not talking about a contract, then is there any means of really going to a legal tradition

848
01:25:00.120 --> 01:25:05.120
rather than a natural life of no authority?

849
01:25:12.120 --> 01:25:14.120
The Theory of Money and Credit

850
01:25:42.120 --> 01:26:12.120
What can we base political obligation from the idea of a tacit consent, that no, we didn't all sign a document, or I didn't expressly say, here I'm delegating this authority to that institution, given that that has not happened and is not liable to happen, on what ground can we base political obligation, and not wanting to say, well, we can't, people like Locke would come up with the idea of tacit consent, well, the fact that you're standing there and you're not leaving implies that you're tacitly consenting to it, and that sort of thing developed.

851
01:26:12.120 --> 01:26:19.120
I just blew this right out of the water and said that there's no other aspect of human relations in which this would be considered legitimate,

852
01:26:19.120 --> 01:26:24.120
where it's just implied that I accede to something because I'm standing there or whatever.

853
01:26:24.120 --> 01:26:28.120
If I haven't given my consent to it, then I don't see how it can legitimately have authority over me.

854
01:26:28.120 --> 01:26:33.120
And if it doesn't have a unanimous authority, then I don't see how you can legitimately appeal to it.

855
01:26:33.120 --> 01:26:39.120
Well, I mean, you have to say there's a certain logical appeal to that argument.

856
01:26:39.120 --> 01:26:45.120
My point would simply be that a lot of people are not going to accept that line of thinking.

857
01:26:45.120 --> 01:26:46.120
That's just a fact.

858
01:26:46.120 --> 01:26:48.800
A lot of people are not going to accept that line of thinking.

859
01:26:48.800 --> 01:26:55.140
So it is useful when your historical tradition happens to be one in favor of liberty to appeal

860
01:26:55.140 --> 01:26:59.720
to it and show that you are not doing something that's just entirely theoretical and removed

861
01:26:59.720 --> 01:27:03.320
from the traditions of your country, but to show that it's coming from the very heart

862
01:27:03.320 --> 01:27:04.320
of that tradition.

863
01:27:04.320 --> 01:27:09.320
I think it's an additional series of arguments in your arsenal.

864
01:27:09.320 --> 01:27:14.320
And given how uphill the battle is, I think the more arguments we have in our arsenal, the better.

865
01:27:14.320 --> 01:27:17.320
Are we out of time? Okay, we're out, so thanks for...