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NOTE 02. States' Rights in Theory and Practice (video)

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All right, here we are after lunch, and unfortunately, I've got to make the talk after lunch much livelier,

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especially since half of you had turkey.

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Thanks a lot, Lew Rockwell, for choosing turkey sandwiches, of all things,

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whatever that stuff is in there that makes you go to sleep.

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So we're going to carry on from last time and shift gears a little bit

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and sort of give an accounting of early American history brief overview

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from the point of view of the Virginians who take the view of the Union that Randolph and others in the Virginia tradition did, whom I mentioned last time.

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A few loose ends to tie up from the previous lecture would be the following.

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I mentioned in answer to someone's question that there's an important pamphlet to read by Richard Bland from 1765

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A very interesting perspective on what the status of the colony of Virginia was and the

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title of that is An Inquiry into the Rights of the British Colonies, so nothing particularly

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difficult about that but I just couldn't remember it, looked it up.

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The other thing is I was talking to Mark Thornton at lunch and he said, maybe I ought to say

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a little something about what happened, what became of the Alien and Sedition Acts after

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And so I think I will just mention that as I said in the talk, the Alienance Addition

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Acts were set to expire on the last day of that administration, which by the way also

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suggests perhaps the partisan nature of it because as soon as a new president comes in

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he won't be able to use those acts any longer.

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So Jefferson of course is elected in 1800 and he allows the Alienance Addition Acts

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to Expire, and he lets everybody out of jail who had been imprisoned under them, and that's

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the end of that.

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Jefferson wins a tremendous victory in 1800, it's sometimes called the Revolution of 1800.

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It's interesting to note though that Jefferson had not, as I said, been eager to appeal to

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the Supreme Court on this matter, and not only because of his views on concurrent review

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versus judicial review, but also because of the simple fact that the Supreme Court in

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in his day he believed would be likely to uphold the legislation and it's interesting

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that a little over a century later when there was sedition legislation passed during World

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War I, the Supreme Court in fact did uphold it as being acceptable during wartime.

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I always tell my students of a case during World War I where you had a Christian minister

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from Vermont who wrote a pamphlet in which he argued that it would be wrong for a Christian

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to take part in that war, and he distributed this pamphlet to a grand total of five people.

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And for that offense, he was sent to prison for 15 years.

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So you know, the Supreme Court ain't going to help you out a whole leg of a lot in times

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like that.

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And finally, just tying up one last thing, over lunch we were talking about how funny

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it would be if all of a sudden, on the op-ed pages and the television news programs and

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political commentary, all of a sudden people started talking about nullification. Like

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all of a sudden the word just kept being used over and over again. And, you know, I don't

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expect that to happen, but I did point out that, I mean, think about the way a lot of

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people get their names put out there as potential presidential candidates. It's mainly because

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major media people start talking them up, like Larry King starts talking them up or

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big prominent politicians start talking them up. For example, how else can we account for

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How Elizabeth Dole Was Ever a Presidential Candidate

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It's defense budget is almost a quarter of 1% of our own, and we've really got to crack down on them.

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It's not the sort of thing that people would have just thought of automatically.

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They think of it because everybody talks about it, and you think,

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oh, of course you've got to be crazy not to pay for that.

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So there's some kind of herd mentality out there.

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It seems to me, why can't we use the herd mentality for something good?

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So let's start talking about nullification as much as we can,

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if nothing else will drive people crazy, the bad guys crazy.

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Murray Rothbard used to say that even though we might not win in the short run and we might have a lot of setbacks and defeats,

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nevertheless it's just so much darn fun fighting against the bad guys and so you've got to take comfort from that.

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Okay, I don't know if any of you were here for Joe Salerno's seminar a couple weeks ago.

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I'm going to make a couple references to it later in the week.

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I watched a little bit of it over the webcast and it's not that I want to wish Joe ill.

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I wish him every good wish in the world, and he's a wonderful guy, and he deserves every good thing.

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It sure would have been a lot easier on me, though, if he'd given a really crummy seminar,

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because then by comparison, it's just an average seminar would seem great.

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But Joe, naturally, has to give this brilliant, genius seminar. Thanks a whole lot.

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So anyway, we'll see how I can do maintaining the standard.

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Well, what I'd like to start with is a guy, again, you've not heard of, and we don't hear much about,

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of the Union, the Federal Union of the United States, and this is a debate that goes on in the 19th century.

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It really begins to solidify into a full-fledged debate around 1830 with the Webster-Hain Debate,

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with Daniel Webster arguing against Robert Hain, they're both senators, one from Massachusetts, one from South Carolina,

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and they're talking about what is the nature of the Union, and Webster is taking what has sometimes

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Webster has been called the nationalist position.

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In fact, Webster gives a famous speech several years later called

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The Constitution Not a Compact Among Sovereign States.

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So he's arguing exactly the opposite of what we've seen so far.

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Webster takes that view.

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As I say, this has been called the nationalist theory

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because for Webster, the United States is fundamentally one.

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At its root, it's one entity.

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It is not a collection of states, it's not a confederation of states,

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is not a league of states, it is a single whole that happens fortuitously to be divided into states, but this is not of any hugely practical significance.

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He doesn't say that the states have no lives, that they are to be utterly demolished by the central government, but certainly they don't have a right of secession,

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certainly they don't have independent existences of their own. That's Webster's view that he expounds at great length in the 1830s.

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and with great rhetorical effect.

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Webster was in the top tier of American orators

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and he wins some interesting historical points.

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I think he's wrong, but he's not an idiot

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and he's not an ineffective speaker by any means.

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So this nationalist view thinks of the United States

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as being composed of a single American people taken in the aggregate

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The Theory of Money and Credit

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If you believe in the compact theory, a lot of the stuff we looked at earlier follows logically because if you believe that actually the United States is not a single whole that began as a single whole, one nation, one people but actually began when self-governing sovereign states came together voluntarily to join a confederation, what follows from that or what can follow from that is that nullification is allowed because if the states rather than the federal government, the states are the fundamental units of the United States

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and they maintain their sovereignty and their rights of self-government, well then at least

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it makes sense.

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You don't have to agree with it, but at least it's a sensible conclusion to say the states

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have the right to protect themselves against abuse through a mechanism like nullification.

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Whereas for a nationalist, if you said the states are going to nullify a federal law,

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that to them would just be simple insubordination.

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They would not view that as a sovereign state protecting itself from encroachments by an

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overweening federal government.

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They would just look at it this way. You've got a big map of the United States. From the

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point of view of a compact theorist, a nullifying state is exercising its sovereign prerogative

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to defend its people against an unconstitutional law. The nationalist pretty much views the

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states as just kind of arbitrary boundary lines. So from their point of view, a group

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of people in some arbitrary boundary line are refusing to obey a law. So it's just

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It's just a big insurrection. It's just a random sampling of individuals, rather than a single sovereign whole resisting from within the union.

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What also can follow from the compact theory is the idea of secession.

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Because if the United States is a plurality of states, each of them having its own life,

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Then, it's at least not a crazy step to say, that that state would also have the ultimate decision,

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as much as it could join the Union, it could also withdraw from it.

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Whereas again, if you believe that the United States is a single whole and you are a nationalist,

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then you would tend not to think that.

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That if you had secession going on, you would again view that simply as a revolutionary insurrection.

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You couldn't even conceive of the idea that this is a sovereign people

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This is why at the end of the semester, after I've explained this distinction to my students,

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which is a distinction that is often just passed over and no one wants to talk about it,

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and inevitably something about the Pledge of Allegiance comes up.

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There's always something about is it legitimate or should under God be in there?

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And I ask them, well, on the basis of what we've learned this semester,

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Professor, apart from whether you should have a pledge of allegiance or not, the question

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would be, what do you think would be most objectionable to, say, somebody like Thomas

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Jefferson about it? Would it be the under God part, which is added later? Maybe, but

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probably not, because what would be the worst part than that? It would be the indivisible

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part. And they all start thinking, oh my gosh, is this treason? I can't believe I'm talking

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about this in the classroom, but I want them to think. They should think about these things.

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Well, the key theorists, I would say, of this nationalist view would be not only Daniel Webster, but also Joseph Story, a great American jurist.

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In fact, Story is one we're going to look at and really develop. Story is one of the great legal minds of the 19th century.

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He wrote his Commentaries on the Constitution of the United States in 1833, and he takes this nationalist position.

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You might say John Marshall, a long time Supreme Court Chief Justice, takes this position as well.

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Now I was at a conference not long ago sponsored by Liberty Fund.

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They have these colloquia, invitation only colloquia, where they have about 15 people and a discussion leader and somebody else

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and we get together and you talk about some readings for a weekend at a nice hotel and nice restaurants and everything.

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I think it's like one of the few outposts of civilization that is still out there where you get together

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The Webster-Hain Debate

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and the disposition of the public lands, and it eventually developed into a full-scale debate over the nature of the Union.

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And there's an excellent collection of documents on this subject, on the Webster-Hain debate by Herman Bels of the University of Maryland that Liberty Fund puts out.

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And The Weekend was devoted to covering that subject. And most of the people there supported Daniel Webster in the nationalist view.

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and I think it was just Clyde Wilson and me who were arguing for Hayne and the other side

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and what was interesting to me was that the Webster side more or less conceded to us

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that alright, strictly speaking, historically you guys have the better argument

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but Webster's argument savers more of poetry and this sort of thing

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and I thought well, I don't think you can really like overturn a whole settled order on the basis of poetry

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In 1840, Upsher wrote a book called A Brief Enquiry into the True Nature and Character of the Federal Government, being a review of Judge Story's commentaries on the Constitution of the United States.

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That's the title. We'll just call it The Brief Enquiry.

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That's Upsher's book, and it's short. It's probably 150 pages.

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It was recently brought back into print by an extremely obscure legal press,

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and it was super expensive, and then it's fallen out again.

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It's basically not read anymore, but I don't know why that is.

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Well, I do know why that is. It's not saying what people want it to say,

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but it's a fascinating and really, really excellent treatment of this stuff,

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because Upsher goes, takes Story's book, Story's commentaries, in which very often Story is trying to build up a theoretical edifice to support the nationalist theory, and he really dismantles it, and not in a way that's just obnoxious or crude, but in a way that's very sophisticated and intellectual.

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Now, one of the positions that the nationalist folks have typically taken, and of course,

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by the way, this culminates in Lincoln, who considers secession, although he does make

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a comment about secession being okay in 1848, he does more or less view the Union as being

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one single indestructible that our fathers brought forth on this continent, a new nation

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in 1776, Lincoln would say, even though of course it was 13 separate states, this all

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culminates in Lincoln.

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A common theme that you hear throughout these guys is that the United States, the people

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who compose what we call the United States, as early as the colonial period, began to

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constitute one people. At some point in that colonial period, Americans began to, in some

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ways, coalesce into a single people. And it's from this idea of Americans as constituting

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Joseph Story says, developing this idea, he says, although the colonies, so of course

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He's talking about from 1607, the settlement of Jamestown, all the way up to the 1770s.

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Although the colonies were independent of each other in respect to their domestic concerns,

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they were not wholly alien to each other. On the contrary, they were fellow subjects

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and for many purposes one people. Every colonist had a right to inhabit if he pleased in any

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other colony and as a British subject he was capable of inheriting lands by descent in

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and every other colony. The commercial intercourse of the colonies, too, was regulated by the

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general laws of the British Empire and could not be restrained or obstructed by colonial

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legislation. So this is some evidence that he is inducing that you in fact do have one

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people here and so that it's not a long stretch to look at the United States as being a single

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whole fundamentally.

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Likewise, John Jay, who was the first Chief Justice of the U.S. Supreme Court said, all

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One people of this country were then, referring to the colonial period, subjects of the King

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of Great Britain and owed allegiance to him and all the civil authority then existing

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or exercised here flowed from the head of the British Empire. They were in a strict

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sense fellow subjects and in a variety of respects one people.

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Now this is all very loose language though because we have John Jay saying in a variety

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of respects one people, Joseph's story saying for many purposes one people. Okay well how

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How about some specifics? How exactly were they one people?

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Well, Upshur is going to develop this and look into is this true or not?

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And he looks at the evidence induced by historian Jay and he says,

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every one of these historical facts is the result of the relation between the colonies and the mother country

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and not the result of the relation between the colonies themselves.

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And he goes on to say that although these facts that we've just heard

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So far as the rights of the mother country are concerned, they existed in the same form

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and to the same extent over every other colony of the empire.

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That is the right to make commercial legislation for the colonies, etc.

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Did this make the people of all the colonies one people?

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If so, the people of Jamaica, the British East Indian possessions and Canada are, for

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the very same reason, one people to this day.

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If a common allegiance to a common sovereign and a common subordination to his jurisdiction

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are sufficient to make the people of different countries one people, it is not perceived

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and why the people of Gaul, Britain, and Spain might not have been one people while

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Roman provinces.

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Now Upshur defines the term people, like what would it mean to be one people?

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He says this way, he says, we're speaking of a political corporation, the members of

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which owe a common allegiance to a common sovereignty and do not owe any allegiance

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which is not common, who are bound by no laws except such as that sovereignty may prescribe,

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Who owe to one another reciprocal obligations, who possess common political interests, who are liable to common political duties, and who can exert no sovereign power except in the name of the whole.

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Now let us look at the American colonies and see if in any way they could be described as one people.

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True, each of the colonies owed allegiance to the British King, but this was not a common allegiance of a single people to a common head.

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Each of these colonial governments, furthermore, possessed powers of legislation and were in no way subject to any other colony in the enactment of laws.

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So they could enact laws without the consent of Georgia or the Carolinas and so on, and they were not bound by the laws of another colony.

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So this seems to be a fairly major way in which they are not one people.

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They paid no taxes to another colony. They did not serve in the militia of another colony.

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They didn't vote in its elections.

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There was no official capacity in which the colonies could act politically as one people.

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And in fact, one of the points I make in my first chapter of my book is that

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very often when the colonies were invited to join inter-colonial confederations,

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and Governments. Their charters at various times in their histories were altered in different ways, in ways that affected individual colonies, but without regard to any other.

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And so Upshur concludes, thus they were separate and distinct in their creation, separate and distinct in the forms of their governments, separate and distinct in the changes and modifications of their governments, which were made from time to time,

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separate and distinct in political functions, in political rights and in political duties, separate, not one people, a multiplicity of peoples.

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In fact, at one point, later on in American history, long after the colonial period, into the 19th century,

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John C. Calhoun, one of the great compact theorists, actually said that, strictly speaking, there is no such thing as the American people.

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Okay, September 1774, we have a meeting of the First Continental Congress. This is several months after the British have imposed the Coercive Acts, which were intended really to punish the colonies, both for the Boston Tea Party and other political parties.

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Several months after the British have imposed the Coercive Acts which were intended really to punish the colonies both for the Boston Tea Party and other insubordination.

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And for Joseph's story, the First Continental Congress represents a general national government.

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It was organized with the consent of the people acting in their primary sovereign capacity.

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Well, let's look at the First Continental Congress. What exactly was it?

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What we have here is a meeting where delegates from the various colonies were sent to discuss what should our response be to this intolerable British action against us.

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What should we do with these coercive acts? And they developed a series of responses.

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But was this in fact a government, this First Continental Congress, and did it in fact represent the maturation of one people?

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Well, according to story, the United Colonies, in this case, must be considered as being a nation de facto as a result.

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Well, let's look at more detail as to what the First Continental Congress of September, that began in September 1774, what did it consist of? What was it?

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Well what you have there are delegates from New Hampshire, Massachusetts, Connecticut, Rhode Island, parts of New York, New Jersey, Pennsylvania, parts of Delaware, Maryland, Virginia, South Carolina.

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North Carolina was not represented until mid-September, Georgia not at all. It's arguable that New York was not represented as a colony but merely as different parts of New York.

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One gentleman from Georgia was admitted, but he did not vote, because he was not a representative of his colony. He was just a guy from one part of Georgia.

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And Upshur accounts for this. He says the fact that Georgia was in effect not represented, New York was sporadically represented, he says this, why that would be, why this was not a concern to people.

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He says, in point of fact, the Congress, the First Continental Congress, was a deliberative and advisory body, and nothing more.

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And for this reason, it was not deemed important, or at least not indispensable, that all the colonies should be represented,

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since the resolutions of Congress had no obligatory force whatsoever.

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It was appointed for the sole purpose of taking into consideration the general condition of the colonies,

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of Devising and Recommending Proper Measures for the Security of Their Rights and Interests.

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Now he goes on to conclude that given that the acts of the First Continental Congress

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appeared in the form of resolutions rather than in the form of laws and commands, that

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they were recommended to their constituents, like each colony had sent delegates, those

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delegates recommended these measures to their constituents whenever they thought were to

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to their advantage, but commanded nothing. Each colony was at perfect liberty to act on these recommendations or not to act on them, however they might, you know, as they may think proper.

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So this does not demonstrate to us a governing structure that derives from one people or constituting a general or national government. It had no more powers than what they could recommend to the various colonies.

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They had no sovereign authority to behave in this way or that, they were merely an advisory body that could offer counsel, but not beyond that.

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So it does not prove what story wants it to prove.

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What it actually shows is that the colonies are still just as independent as before, just as distinct as before, even if for certain limited purposes they may wish to collaborate.

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Even then, they do so not at the command of a single sovereign government, but just simply as their own good judgment will inform them.

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Likewise, Hoppe goes on to note that the First Continental Congress decides they're going to meet again next year,

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so there'll be a Second Continental Congress, which there was following the battles of Lexington and Concord in May of 1775.

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They met again as the Second Continental Congress, and then they just don't go out of existence.

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in existence, it stays functioning throughout the war for independence, and it's a structure

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that I guess we have to for shorthand call it a government, we should understand that

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it's not like the U.S. government under the Constitution, it has one branch, it has basically

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a legislative branch, and even there they have no coercive powers over the colonies

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In 1875 there were many colonies now becoming states.

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Once they recognized their independence, we'll just call them states, but they were still colonies in 1775.

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They have no powers of coercion over them.

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So once again we don't have a single people operating in some originally sovereign way.

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We have instead a multiplicity of states once again sending delegates.

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The first recommendation to send deputies to this general congress was issued to the colonies as such.

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He acted for itself, choosing its own delegates, did not interfere in the choice of any other

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colony.

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And when they met, they governed, they voted by colony, each colony got one vote, no matter

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how great their population or how many delegates they sent, they got one vote, again emphasizing

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that the fundamental unit is the colony, you get one vote for that.

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Certainly if this were a national government, if this Second Continental Congress and the

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The Congress that followed were a national government, this would not have functioned

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this way, would not have granted such centrality to the individual colonies in the government.

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Until the adoption of the Articles of Confederation, which was not adopted until 1781, this is

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the document that, as you know, precedes the Constitution, until that time, the Congress

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The Congress that was established, the Second Continental Congress or simply the Congress, had really no powers at all other than advising the colonies, other than openly deliberating, did not claim sovereignty of any kind, it was an occasional body, renewable, although de facto they may have exercised this or that power, it needs to be remembered that during a time of great danger in the colonies it was thought that this may not be the time to wax philosophical

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and the functions of government, but it was understood that whatever measure this government may take was, again, up to the discretion of the colonies to agree to or not.

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But what's significant is that there was nothing in the powers that were exercised by this Congress around the time of the War for Independence,

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even prior to the Declaration and then shortly afterward and before the Articles of Confederation.

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So from 1775 to 81, nothing that is done by that government or that institution, that

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Congress, is inconsistent with the idea of the states retaining their absolute liberty

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and independence.

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It's true that, as Story would point out, that this Congress did assume the right to

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declare war and make peace, to authorize captures, to institute appellate prize courts, to direct

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to contract and control all national, military and naval operations, to form alliances and

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make treaties, to contract debts and issue bills of credit on national account.

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But these powers were not by any means exclusive to the Congress and in fact when the troops

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were raised or the vessels of war were commissioned or various military operations were conducted

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by the colonies, these were done by the colonies in their own separate manner.

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Ticonderoga, according to, as Upsher points out, was taken by the troops of Connecticut before the Declaration of Independence.

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Massachusetts and Connecticut fitted out their own vessels to cruise against English ones.

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In October 1775, South Carolina followed suit.

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New Hampshire authorized her executive branch to issue letters of mark and reprisal,

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which again, these are the functions of sovereign entities.

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So as Upshur concludes, these examples suffice to show that in the conduct of war, Congress possessed no exclusive power and that the colonies or the later states retained and actually asserted their own sovereign rights and powers to that matter.

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They proved that Congress exercised no power which was considered as abridging the absolute sovereignty and independence of the states.

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Interestingly, for example, another thing that shows the limits of the powers Congress

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had, although the Congress was allowed to issue bills of credit, they couldn't make

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them legal tender, they couldn't punish counterfeiters of them, they couldn't bind the states to

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redeem them, they could receive ambassadors, but they had no power to extend to ambassadors

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the protection that ambassadors typically enjoy under international law, that they would

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typically receive from the government of a sovereign nation.

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De Longchamp, French Minister of Plenipotentiary in Philadelphia, French Consul General of

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France, French Secretary of the French Legation, De Longchamp was indicted and tried in a Philadelphia

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court and punished.

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The question arose whether the authorities of Pennsylvania should in fact deliver up

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this man to the French government and let the French government deal with him however

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they wish.

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But at no time do we see the federal government being thought of as possessing any authority

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over this matter or that in any way was it appropriate or proper to refer this to the

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federal government even though, as I've said, offering protection to diplomats from other

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of Countries is considered to be a power that follows from sovereignty and that follows

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from a sovereign government.

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Well it doesn't occur to people that the government they have meets those criteria.

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They think instead of the more local government.

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And finally we have this point that although the powers that were at times exercised by

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this Congress were substantial, nevertheless the states did not always just sit back and

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Now, we also know from the evidence of the way that certain treaties have been drafted, that the 13 American colonies, and then after 1776 states, were viewed as being 13 separate sovereignties, so in the Treaty of Alliance with France, 1778, we are told that an alliance has been struck between the United States and the United States,

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is seen, on the one hand, the most Christian king, and on the other hand, the United States of America, to wit, New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, so on and so forth, and all of them are mentioned by name.

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We see the same formula used in a Treaty of Amity and Commerce with the States General of the United Netherlands in the early 1780s and another one, another treaty with Sweden.

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Now it's true that you can see in another treaty with the Netherlands, 1782, concerning

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recaptured vessels, you can see the term, instead of reciting all the states, the term

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the United States of America as the style that they're using. And in some other treaties

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you can see that. But in effect these two were considered to be equivalent ways of speaking,

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and the United States of America are Massachusetts, New Hampshire, Connecticut, Rhode Island, etc.

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Now of course when the treaty is established with Great Britain establishing American independence,

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we have His Britannic Majesty acknowledges the said United States to wit New Hampshire,

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Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, all the

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way down, all of them, to be free, sovereign and independent states that he treats with

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them as such.

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Now, whatever the case may be in terms of the relation of the states to that second Continental Congress that then stays in power,

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the fact is that once 1781 comes along and the Articles of Confederation are drafted,

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there's no question about the status of the states there because right in the Articles of Confederation expressly says

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that each state retains its sovereignty, freedom and independence and every power, jurisdiction and right which is not by this Confederation

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Expressly Delegated to the United States in Congress Assembled

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So there it is, okay, so there it is, that the sovereignty of the states is absolutely acknowledged in that document.

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So in effect that is what, in fact what we see in there is that it is said that the states retain their sovereignty, freedom and independence,

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which strongly indicates that it's something they must have been possessing all this time because they retain it under this document.

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So that's sort of an overview of how Upshur looks at the status of the colonies during the colonial period

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and the sort of government that's established, First and Second Continental Congress, and then Articles and Federation.

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What he sees are a multiplicity of jurisdictions that are in no way amalgamated

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in a way that could make them legitimately considered to be one people.

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He says the history does not speak in that way.

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Now a figure that is of some importance but doesn't get much mentioned any longer

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and yet he has something rather interesting to say on this is Orestes Brownson.

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I don't know how many people know who Orestes Brownson is.

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I don't have the copy of his book right here.

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Orestes Brownson was probably the best known Catholic convert in the United States in the 19th century.

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And given a lot of his writing, he's sometimes been compared to Cardinal Newman, who was the great English scholar and convert to Catholicism as well.

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He's sometimes been compared to Newman. Newman admired him and spoke very well of him, but Brownson, being the way he was, constantly denounced Newman all the time, so unfortunately it was not mutual.

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But, Browson published something called Browson's Quarterly Review for a long time.

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His thinking, he's one of these guys who starts off sort of as a transcendentalist,

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and then he becomes a traditional Catholic, arguing that the Pope has the right to depose secular rulers.

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I mean, he goes from one extreme to the other, then he takes that back.

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He's sort of a little bit of a wanderer, ideologically, but there's been a lot of books written on him.

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Arthur Schlesinger, if Arthur Schlesinger likes him, he's got to be great.

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You've got to drop everything and read him.

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But Schlesinger says that some of the most interesting political thought was taking place in articles in Brownson's quarterly review.

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Well, toward the end of his life, around 1875, he wrote a book called The American Republic.

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Do not buy this book.

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I wrote the introduction to an edition that came out two years ago and I'm actually telling you not to buy it.

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I like my introduction.

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No, that's not true. You should rush out and get it immediately.

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You should rush out and get it.

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I don't want that getting back to the publisher that I'm discouraging sales.

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I mean, it's a fine book. It's just a frustrating book, really.

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I find it's a frustrating book.

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And so I had to write the introduction for this new edition that came out a couple of years ago.

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And what I found is this about Brownson.

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And it says a lot about the, I think, the nationalist theory of the Union.

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When I mentioned the Liberty Fund conference that I went to, and that people who supported Webster

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and argued that the United States was a single whole with a single aggregated people,

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and they said that, okay, maybe the history doesn't lean this way,

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but it seems so much more poetic and pleasant.

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Well, in a way, that's the attack that Brownson's largely going to take.

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Incidentally, in case anybody is secretly wondering, doesn't the Constitution say, we, the people of the United States, do ordain and establish this Constitution?

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Doesn't that seem to suggest that it is a single whole, it is a single aggregated people?

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But the short answer to that is that, and that was an argument that Daniel Webster seriously put forth, was that, hey, it says, we, the people, it is one American people who did this together

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and so we should be nationalists but the point is that originally it didn't say that originally said we the states and it listed all the states but since you couldn't know in advance which states were going to ratify the Constitution you couldn't the committee on style decided it would be a little bit kind of presumptuous to put every state in there you don't know if they're even going to ratify it so we have to wait we have to see what state ratifies it so we'll say we the people of the United States but that was understood to mean the people of Massachusetts the people of Virginia

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Brownson came to this position in the mid-19th century that divine providence has ordained

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a certain kind of political form for the United States.

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And he came to this conclusion that divine providence has ordained a kind of political

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life for every country in the world and that it is the job of the statesman to using his

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reason and in effect throwing himself into and immersing himself in the history of his

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people to sort of divine what that tradition is and then perfect it and defend it.

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So every people has this separate divinely ordained type of government for them and everyone

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is not the same.

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So the American system works for the United States but it's not something that you would

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want to export everywhere.

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Everybody, every people suitable to its own circumstances and temperament has its own divinely

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ordained unwritten constitution as it were.

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Well Brownson takes this position, I mean you can sort of see almost even more conservative

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than Edmund Burke really, I mean almost like Joseph Demestra, like very conservative position

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Because once you figure out what that divinely ordained unwritten constitution is, then that's it.

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There ain't no change in it because then you're obviously interfering with divine providence.

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So what does Brownson choose as the divinely ordained mode of government for the United States?

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He says this nationalist position where the United States is a single indestructible whole,

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this is the way divine providence intended it.

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And then he's going to go and try and defend that position.

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position.

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Well, if divine providence intends it this way, then naturally secession would be considered

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like the height of blasphemy, but this is going to be the position that Brownson puts

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forth in great detail in his book, The American Republic.

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So he suggests that the idea of the United States as a single people, instead of as a

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collection of sovereignties, formed the backbone of this unwritten divine constitution.

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And he argued that the American colonies had amounted to a single people, although he goes,

394
00:42:50.540 --> 00:42:53.500
he said they only became a single people when they broke with Britain, and all of a sudden

395
00:42:53.500 --> 00:42:55.180
they became a single people.

396
00:42:55.180 --> 00:43:00.900
And that none of the original thirteen colonies or of the states they eventually became, none

397
00:43:00.900 --> 00:43:06.020
of them had ever possessed on their own the full attributes of sovereignty.

398
00:43:06.020 --> 00:43:10.860
And for Browson, he thought there was still further confirmation of his view that divine

399
00:43:10.860 --> 00:43:21.860
The reason why divine providence wants the country to be a single indivisible whole was the fact that attempts to establish the opposite didn't work.

400
00:43:21.860 --> 00:43:29.860
Like the southern states tried to show that the country was indivisible, but what happened to them? They were defeated.

401
00:43:29.860 --> 00:43:33.860
That's divine providence showing that that's not how it's supposed to work.

402
00:43:33.860 --> 00:43:39.860
Yeah, I know, I know. I can't believe I'm even saying these things, but that's Brownson's position.

403
00:43:39.860 --> 00:43:43.860
And as I say, he's a super-serious and important intellectual.

404
00:43:43.860 --> 00:43:49.860
Well, I think he's going to have a problem. I mean, well, he's dead, so he doesn't have to worry about this anymore.

405
00:43:49.860 --> 00:43:54.860
But anybody who's going to pursue this line of thought is going to have a problem applying it to the United States.

406
00:43:54.860 --> 00:43:59.860
Because, all right, you could at least, you know, in the case of France, for instance,

407
00:43:59.860 --> 00:44:02.740
You might be able to make a plausible argument that if you're going to take Brownson's

408
00:44:02.740 --> 00:44:09.740
view and there's a certain type of traditional type order that France has assigned to it

409
00:44:09.740 --> 00:44:14.020
by divine providence, you could say that the French revolutionaries certainly broke with

410
00:44:14.020 --> 00:44:16.580
a long-standing tradition.

411
00:44:16.580 --> 00:44:22.140
They subjected monarchical France to a ceaseless innovation and novelty and made fruitless

412
00:44:22.140 --> 00:44:26.620
and repeated attempts throughout the 1790s to impose new constitutions.

413
00:44:26.620 --> 00:44:40.620
The American case is much more difficult to ascertain what precisely would have constituted a revolutionary break with tradition to be condemned by Bronson other than the establishment of a monarchy or a hereditary aristocracy.

414
00:44:40.620 --> 00:44:55.620
The point is that in the American case you can find intelligent people like Story and Webster on one side of the most fundamental question in American political life, is the US a single whole or a collection of states?

415
00:44:55.620 --> 00:45:01.620
And on the other side you can find super smart people, Jefferson, Calhoun, Upshur, take the other view.

416
00:45:01.620 --> 00:45:06.620
Now, if Divine Providence has established a single system for the US,

417
00:45:06.620 --> 00:45:10.620
then presumably men of good will would be able to apprehend what that system is.

418
00:45:10.620 --> 00:45:18.620
Why would you have brilliant minds on both sides of this if statesmen are expected to build upon

419
00:45:18.620 --> 00:45:20.620
the unwritten constitution given to them by Providence?

420
00:45:20.620 --> 00:45:24.620
It just seems strange that so fundamental an issue would be the source of so much controversy.

421
00:45:24.620 --> 00:45:52.620
And in fact, even Brownson himself conceded during the war, when talking about the Catholic Church in the war, he said that, you know, many Catholics have supported the right of secession, and he said that, you know, it's probably okay not to forbid communion to people who believe in the right of secession because the doctrine of state sovereignty has been very widespread.

422
00:45:52.620 --> 00:45:58.500
Well, why would it be so widespread if it's the opposite of what Divine Providence wants?

423
00:45:58.500 --> 00:46:03.500
Then Brownson cites John Quincy Adams as someone who had argued that, quote, Americans were

424
00:46:03.500 --> 00:46:08.860
always one people and the states hold from the union, not the union from the states.

425
00:46:08.860 --> 00:46:12.540
And Brownson says, you see, look, there's John Quincy Adams holding up Divine Providence

426
00:46:12.540 --> 00:46:13.540
for us.

427
00:46:13.540 --> 00:46:17.180
Well, the problem with that is that I can find another quotation from John Quincy Adams

428
00:46:17.180 --> 00:46:19.620
that says the opposite.

429
00:46:19.620 --> 00:46:25.100
Not only did Adams argue in 1843 that the acquisition of Texas would justify dissolving

430
00:46:25.100 --> 00:46:30.220
the Union, but we also have this in commemoration of the Constitution's 50-year Jubilee.

431
00:46:30.220 --> 00:46:31.980
Here's John Quincy Adams.

432
00:46:31.980 --> 00:46:32.980
He says,

433
00:46:32.980 --> 00:46:36.860
The indissoluble link of Union between the people of the several states of this confederated

434
00:46:36.860 --> 00:46:40.820
nation is, after all, not in the right but in the heart.

435
00:46:40.820 --> 00:46:44.980
If the day should ever come, may Heaven avert it, when the affections of the people of these

436
00:46:44.980 --> 00:46:49.220
states shall be alienated from each other, when the fraternal spirit shall give way to

437
00:46:49.220 --> 00:46:53.380
A cold indifference or collision of interests shall fester into hatred.

438
00:46:53.380 --> 00:46:58.500
The bands of political associations will not long hold together, parties no longer attracted

439
00:46:58.500 --> 00:47:04.880
by the magnetism of conciliated interests and kindly sympathies, and far better will

440
00:47:04.880 --> 00:47:10.580
it be for the people of the disunited states to part in friendship from each other than

441
00:47:10.580 --> 00:47:13.920
to be held together by constraint.

442
00:47:13.920 --> 00:47:19.140
So the chief problem with Brownson's point seems to be that here's even a guy he supports

443
00:47:19.140 --> 00:47:37.140
in favor of his view, which he insists is the providential one, was actually ambiguous on the question, and on top of that, we have all the great Americans who held the compact view, and so given this, it seems that it's fraught with difficulty, at the very least, to describe one of these as the providentially established one.

444
00:47:37.140 --> 00:47:47.140
Brownson also deals with an objection that Upshur raised. I don't think he realized that Upshur raised it.

445
00:47:47.140 --> 00:48:03.140
Upshur asked the nationalist folks, what would have happened if some state had chosen not to ratify the Constitution and had just stayed out of the Union?

446
00:48:03.140 --> 00:48:07.460
What relationship would the Federal Union have had with that state?

447
00:48:07.460 --> 00:48:12.180
If it were really one people all the time, then how could that state have an existence

448
00:48:12.180 --> 00:48:13.540
apart from the Federal Union?

449
00:48:13.540 --> 00:48:18.020
What would the relationship have been?

450
00:48:18.020 --> 00:48:22.460
And Upsher had wondered that, and he said, you know, obviously if one state had refused

451
00:48:22.460 --> 00:48:27.460
to ratify the Constitution, then it would have been an independent state, and we would

452
00:48:27.460 --> 00:48:30.620
have had absolutely no authority to coerce it.

453
00:48:30.620 --> 00:48:35.260
goes absolutely logically from the compact theory, not to Brownson. He says that if

454
00:48:35.260 --> 00:48:40.260
one of the states had not ratified the Constitution, then it should be treated as a U.S. territory.

455
00:48:40.260 --> 00:48:45.540
It wouldn't be a full-fledged state of the Union, but it would be treated as a territory.

456
00:48:45.540 --> 00:48:50.740
He says, if nine states had ratified the Constitution and the other four had stood out and refused

457
00:48:50.740 --> 00:48:55.220
to do it, which was within their competency, they would not have been independent sovereign

458
00:48:55.220 --> 00:48:59.300
states outside of the Union, but territories under the Union.

459
00:48:59.300 --> 00:49:17.300
I don't know if I need to refute this or not, but it seems sort of odd, but since in Brownson's view, the states and the union were co-evil and one could not exist without the other, it was impossible to conceive of some of the states enjoying independent existences apart from the union.

460
00:49:17.300 --> 00:49:21.700
Brownson believed the American people were one, so a state that had refused to ratify

461
00:49:21.700 --> 00:49:27.180
the Constitution would not, by that omission, have separated itself from the political order

462
00:49:27.180 --> 00:49:31.900
to which he believes it is inextricably bound. It would rather have become a territory of

463
00:49:31.900 --> 00:49:36.420
the United States. And given that Providence, according to him, has established the American

464
00:49:36.420 --> 00:49:41.860
people as an indivisible whole, no other answer appears to be available to him.

465
00:49:41.860 --> 00:49:50.180
Well, Upsher has an even greater difficulty to raise. He says, what would have happened

466
00:49:50.180 --> 00:49:53.700
if one of the colonies had refused to agree to the Declaration of Independence and preferred

467
00:49:53.700 --> 00:49:58.620
instead to remain under British authority? Upsher asks, could the other colonies have

468
00:49:58.620 --> 00:50:02.980
rightfully compelled it to unite with them in their revolutionary purposes on the ground

469
00:50:02.980 --> 00:50:07.460
that, hey, you're part and parcel of one people, right? So you have no right not to

470
00:50:07.460 --> 00:50:11.220
declare independence. We're all one people. So you are going to fight against Britain

471
00:50:11.220 --> 00:50:17.860
and with us, and Upshur takes the position that no, to the contrary, the recusant colony

472
00:50:17.860 --> 00:50:22.140
would have possessed a status during the conflict no different from that of Canada.

473
00:50:22.140 --> 00:50:26.180
Having declared war, the other colonies may well have considered the people of this colony

474
00:50:26.180 --> 00:50:31.380
of loyalists to be their enemies, but they would have had no right to treat them as traitors.

475
00:50:31.380 --> 00:50:36.500
To what purpose then, inquired Upshur, were the people of the colonies one people?

476
00:50:36.500 --> 00:50:41.200
If in a case so important to the common welfare, there was no right in all the people to be

477
00:50:41.200 --> 00:50:46.440
together to coerce the members of their own community to the performance of a common duty.

478
00:50:46.440 --> 00:50:51.960
There goes the theory of the one people. If you're in this situation and you have absolutely

479
00:50:51.960 --> 00:50:57.120
no right in any way to coerce a fellow colony that refuses to fight against Britain, then

480
00:50:57.120 --> 00:51:03.880
in what way can you be called one people? Well, anyway. So that in effect, that's sort

481
00:51:03.880 --> 00:51:10.400
of an overview of that's the way, that gives you at least a flavor of how Upshur as really

482
00:51:10.400 --> 00:51:18.000
A spokesman for this Virginia inspired tradition would have looked at American history to

483
00:51:18.000 --> 00:51:21.620
defend the compact version of the Union.

484
00:51:21.620 --> 00:51:26.040
And this is the type of argumentation that can be used later on when Lincoln gives the

485
00:51:26.040 --> 00:51:33.060
Gettysburg Address and really puts forth the nationalist view in that short, succinct treatment.

486
00:51:33.060 --> 00:51:37.120
This is the type of argumentation you could refer to, to say that Lincoln is simply wrong

487
00:51:37.120 --> 00:51:41.120
It's long to say that there was one nation brought forth in 1776.

488
00:51:41.120 --> 00:51:45.120
There's nothing about any of that history that would indicate that.

489
00:51:45.120 --> 00:51:49.120
Instead you have 13 separate sovereignties.

490
00:51:49.120 --> 00:51:53.120
Okay, I'm going to, now given that the title of this talk is

491
00:51:53.120 --> 00:51:57.120
States' Rights in Theory and Practice, I think that's enough theory for

492
00:51:57.120 --> 00:52:01.120
it to last a good long time.

493
00:52:01.120 --> 00:52:05.120
But now we get to the fun part.

494
00:52:05.120 --> 00:52:29.120
Because here's stuff that you don't hear covered much when dealing with states' rights questions, because there's this desire, excuse me, there's a desire on the part of some people to portray states' rights as a barbaric, backward, terrible theory that is advanced only by people who support slavery, segregation, oppression, you know, whatever, murder, whatever.

495
00:52:29.120 --> 00:52:36.120
And no rational person would support it, no good-hearted person, everybody should favor federal supremacy, all that.

496
00:52:36.120 --> 00:52:43.120
And so you don't get, the only time you hear states' rights mentioned is the southern states want to protect slavery, that's all you hear.

497
00:52:43.120 --> 00:52:50.120
And incidentally, the southern states were perfectly willing to use the federal government to protect slavery time and time again, so let's bear that in mind.

498
00:52:50.120 --> 00:52:58.120
But what I want to do is look at some of the northern states, some of the ones that were most angry at the south later on, and see what they were up to.

499
00:52:58.120 --> 00:53:02.820
And I'm not going to go into the standard stuff that you could read about, for example,

500
00:53:02.820 --> 00:53:06.040
because you should just read about it in Tom DiLorenzo's book, and then I can talk about

501
00:53:06.040 --> 00:53:07.040
other things.

502
00:53:07.040 --> 00:53:10.880
Tom DiLorenzo has a book on Lincoln, as you all know, the real Lincoln, he's got a chapter

503
00:53:10.880 --> 00:53:14.880
on secession that's very good, that talks about the fact, and I say I'm not going to

504
00:53:14.880 --> 00:53:18.760
go into these, but talking about the fact that the New England states several times

505
00:53:18.760 --> 00:53:20.400
threatened secession.

506
00:53:20.400 --> 00:53:22.640
They threatened it over the Louisiana Purchase.

507
00:53:22.640 --> 00:53:27.180
You hear a little bit them threatening, not a lot of people listen to them, but they threatened,

508
00:53:57.180 --> 00:54:11.500
I want to look at what was happening starting in late 1807 to early 1809 with this embargo

509
00:54:11.500 --> 00:54:16.380
that Thomas Jefferson imposed because as I say here is a totally lost aspect of American

510
00:54:16.380 --> 00:54:17.380
history.

511
00:54:17.380 --> 00:54:20.180
What's going on, I mean people know about the embargo but not some of this other stuff

512
00:54:20.180 --> 00:54:21.180
I think.

513
00:54:21.180 --> 00:54:28.180
What's going on here, as many of you doubtless know, is that given that for years now, on

514
00:54:28.180 --> 00:54:34.180
and off, Britain and France have been at war with each other and their allies, and that

515
00:54:34.180 --> 00:54:40.260
means that given obviously the tremendous naval presence that the British have, that

516
00:54:40.260 --> 00:54:44.580
if you are engaged as a neutral in trading with either of these sides, you are going

517
00:54:44.580 --> 00:54:49.300
to involve yourself in some kind of peril, because if you trade with one side, the other

518
00:54:49.300 --> 00:54:58.300
Thomas Jefferson came to the conclusion that he did not want to go to war, if it could be avoided, with Britain, although he thought it might be necessary because the people were very much in favor of it,

519
00:54:58.300 --> 00:55:25.300
Thomas Jefferson came to the conclusion that he did not want to go to war, if it could be avoided, with Britain, although he thought it might be necessary because people were very much in favor of it by 1807, but Jefferson eventually is going to impose an embargo.

520
00:55:25.300 --> 00:55:29.300
But the embargo is not going to be an embargo just on Britain and France.

521
00:55:29.300 --> 00:55:36.300
It's an embargo that's going to forbid any American ship from leaving for any foreign port anywhere in the world.

522
00:55:36.300 --> 00:55:40.300
And in case you're wondering, why would it be so broad?

523
00:55:40.300 --> 00:55:43.300
I mean, first of all, the reason he's doing this is to punish Britain and France.

524
00:55:43.300 --> 00:55:47.300
The thinking is, they need American commerce for their prosperity.

525
00:55:47.300 --> 00:55:51.300
And if we cut it off, then it's going to bring them to heel.

526
00:55:51.300 --> 00:55:55.620
and Jefferson said, you know, the beautiful thing is that they'll ask us,

527
00:55:55.620 --> 00:55:58.980
hey, what can we do to restore commerce with the U.S.? What do you want us to do?

528
00:55:58.980 --> 00:56:02.900
And they're going to find out that all we're asking is for them to treat us fairly.

529
00:56:02.900 --> 00:56:06.740
So he was going to, so he called this peaceable coercion.

530
00:56:06.740 --> 00:56:11.940
Peaceable coercion, use economic means to try to bring these folks to heel.

531
00:56:11.940 --> 00:56:15.580
Now at first there wasn't a huge amount of opposition to this because for one thing,

532
00:56:15.580 --> 00:56:20.820
it's December 1807, most of the ports are frozen, you can't be shipping much anyway,

533
00:56:20.820 --> 00:56:25.820
It's not a big problem, but as the months go on and as it warms up and you get to the spring of 1808,

534
00:56:25.820 --> 00:56:30.820
the New England states are obviously displeased by this because many of them make their livelihoods

535
00:56:30.820 --> 00:56:36.820
in one way or another in trade or related fields such as that.

536
00:56:36.820 --> 00:56:41.820
And this is destroying their livelihoods, absolutely destroying and ruining them.

537
00:56:41.820 --> 00:56:47.820
Now given that Americans were great smugglers from the colonial period to then, they were classic smugglers,

538
00:56:47.820 --> 00:56:52.420
Some estimates have it that as much as half of American trade nevertheless persisted thanks

539
00:56:52.420 --> 00:56:53.420
to smugglers.

540
00:56:53.420 --> 00:57:00.900
But still, it was a tremendous disability and the New Englanders were very upset about

541
00:57:00.900 --> 00:57:01.900
it.

542
00:57:01.900 --> 00:57:05.540
It may seem that they're being unreasonable because after all, isn't Jefferson imposing

543
00:57:05.540 --> 00:57:06.820
the embargo really for them?

544
00:57:06.820 --> 00:57:10.820
I mean, he's trying to vindicate the rights of American neutrals on the high seas.

545
00:57:10.820 --> 00:57:11.820
So what's the problem?

546
00:57:11.820 --> 00:57:17.780
Well, the problem is that American ships could at least, they could take out insurance against

547
00:57:17.780 --> 00:57:23.060
possible capture or harassment by the British or French, and they could more or less live

548
00:57:23.060 --> 00:57:25.140
with it while they had to.

549
00:57:25.140 --> 00:57:28.620
But this was absolutely shutting everything down and ruining them.

550
00:57:28.620 --> 00:57:34.700
Well, Jefferson is one of these people who used to save everything, never threw anything

551
00:57:34.700 --> 00:57:36.180
away.

552
00:57:36.180 --> 00:57:38.380
We all know people like this, never throw anything away.

553
00:57:38.380 --> 00:57:41.660
Well, Jefferson saved the letters people wrote to him.

554
00:57:41.660 --> 00:57:46.020
In fact, there's one historian who's collected the various letters that came in to Thomas

555
00:57:46.020 --> 00:57:47.980
Thomas Jefferson published them as a book.

556
00:57:47.980 --> 00:57:53.260
And he would get letters asking, you know, can you find me a job somewhere, maybe I could

557
00:57:53.260 --> 00:57:57.220
work in a customs house or whatever, or even saying, you know, maybe you could lend me

558
00:57:57.220 --> 00:57:59.620
a couple of bucks, I'm kind of short.

559
00:57:59.620 --> 00:58:04.140
And the funny thing is, Jefferson would sometimes put money in an envelope and mail it back

560
00:58:04.140 --> 00:58:08.380
to the person and he generally, as long as you weren't just abusing him, like Thomas

561
00:58:08.380 --> 00:58:13.100
Jefferson, you're a big jackass, if as long as you weren't saying that, he would more

562
00:58:13.100 --> 00:58:14.700
or less try to answer you.

563
00:58:14.700 --> 00:58:21.700
Mr. President, if you know what is good for your future welfare, you will take off from

564
00:58:44.700 --> 00:58:48.700
Take Off the Embargo

565
00:58:48.700 --> 00:58:52.700
Look at the situation in the country when you took the chair and look at it now.

566
00:58:52.700 --> 00:58:56.700
I should think it would make you sink with despair and hide yourself in the mountains.

567
00:58:56.700 --> 00:59:00.700
And then he says,

568
00:59:00.700 --> 00:59:04.700
another person says, take off the embargo,

569
00:59:04.700 --> 00:59:08.700
be ashamed of yourself and never show your head in public company again.

570
00:59:08.700 --> 00:59:12.700
My gosh, I'd love to say to some president, never show your head in public company again.

571
00:59:12.700 --> 00:59:20.700
And then my favorite one, I have agreed to pay four of my friends $400 to shoot you if you don't take off the embargo.

572
00:59:23.700 --> 00:59:27.700
I mean, that's one thing that the government is actually very efficient at.

573
00:59:27.700 --> 00:59:31.700
I mean, today you'd be halfway through that first sentence and you'd be in jail, basically.

574
00:59:31.700 --> 00:59:37.700
All right, so that's the kind of frustration that you have in New England at that time.

575
00:59:37.700 --> 00:59:44.980
at that time, and as I said, you even begin to hear at least some talk of secession.

576
00:59:44.980 --> 00:59:47.980
Now what's interesting about this embargo, first of all, is that sometimes we have this

577
00:59:47.980 --> 00:59:53.440
image of Jefferson, I mean certainly this is no question Jefferson's low point is enforcing

578
00:59:53.440 --> 00:59:59.660
this embargo, but he did not micromanage the embargo as the image people have of Jefferson

579
00:59:59.660 --> 01:00:02.740
being involved in this on a day-to-day basis, he really wasn't, and I'm not saying this

580
01:00:02.740 --> 01:00:06.880
just special pleading for Jefferson because I like him, he shouldn't have done this,

581
01:00:06.880 --> 01:00:12.960
But the person who mainly enforced the embargo was Albert Gallatin, the Secretary of the

582
01:00:12.960 --> 01:00:13.960
Treasury.

583
01:00:13.960 --> 01:00:18.000
And the irony of that is that Gallatin had been arguing for months against the idea of

584
01:00:18.000 --> 01:00:19.000
an embargo.

585
01:00:19.000 --> 01:00:25.480
It's a stupid idea, it's terrible, it's obviously not going to change the behavior of those

586
01:00:25.480 --> 01:00:26.480
who are harassing us.

587
01:00:26.480 --> 01:00:27.480
And it didn't.

588
01:00:27.480 --> 01:00:32.160
All it did was alienate New England entirely and destroy New England commerce.

589
01:00:32.160 --> 01:00:33.160
That's all it did.

590
01:00:33.160 --> 01:00:35.000
It had none of the desired effects.

591
01:00:35.000 --> 01:00:36.800
So Gallatin was totally vindicated.

592
01:00:36.800 --> 01:00:40.240
He's the one put in charge of enforcing the embargo.

593
01:00:40.240 --> 01:00:45.840
And Jefferson really doesn't want to be involved in the day-to-day activity of it.

594
01:00:45.840 --> 01:00:52.880
So there's a letter from Jefferson at one point where he's saying that he's just not

595
01:00:52.880 --> 01:00:53.880
feeling well.

596
01:00:53.880 --> 01:00:57.160
He says, I've got like one hour a day where I feel okay.

597
01:00:57.160 --> 01:01:00.600
And during that hour, I'm too busy to think about this embargo.

598
01:01:00.600 --> 01:01:02.820
He's complaining of headaches.

599
01:01:02.820 --> 01:01:07.860
So we've got letter after letter of him saying to Gallatin, you know, I trust you, you take

600
01:01:07.860 --> 01:01:10.900
care of this, you keep an eye on it, whatever, over and over again.

601
01:01:10.900 --> 01:01:14.660
And whenever Gallatin would try to go up to him and say, well, I don't know what to do

602
01:01:14.660 --> 01:01:18.060
in this case, Jefferson would more or less say, up, up, up, up, up, headaches, remember?

603
01:01:18.060 --> 01:01:19.060
Headaches.

604
01:01:19.060 --> 01:01:20.060
I don't want to talk to you.

605
01:01:20.060 --> 01:01:23.840
So Gallatin's got to figure this out on his own, and I'm not sure what to do.

606
01:01:23.840 --> 01:01:27.060
And so when Gallatin, there was this one point in his life, I'm sorry, I can't remember if

607
01:01:27.060 --> 01:01:31.300
it was a child or if some family member died during the embargo, one of his family members

608
01:01:31.300 --> 01:02:01.300
The Embargo is so reliant on the overall direction of Gallatin, while Gallatin is in mourning and whatever, the Embargo is supposed to be going on, and Jefferson doesn't know the first thing about it really, so he writes a letter to Gallatin much sooner than really ought to be after this relative of his had died, saying, I know things are really difficult for you, but the Embargo has kind of fallen apart over here, maybe you might give us some advice as to how to...poor Jefferson, right?

609
01:02:01.300 --> 01:02:14.300
Well, the obnoxious aspect of the embargo wasn't simply that it cut off international trade,

610
01:02:14.300 --> 01:02:20.300
but it was that you could have your ship seized, confiscated by the government,

611
01:02:20.300 --> 01:02:24.300
on the mere suspicion that you were intending to violate the embargo.

612
01:02:24.300 --> 01:02:32.300
Now, you know, mere suspicion is not exactly probable cause, and so this was liable to tremendous abuse.

613
01:02:32.300 --> 01:02:35.300
It seemed to some people to be a violation of the Fourth Amendment.

614
01:02:35.300 --> 01:02:40.300
It's supposed to protect the people against unreasonable searches and seizures.

615
01:02:40.300 --> 01:02:45.300
And so, naturally, you get tremendous opposition.

616
01:02:45.300 --> 01:02:52.300
Well, a federal district court in 1808 ruled that the embargo was constitutional.

617
01:02:52.300 --> 01:03:01.300
and it was a case that was initiated by the federal government, it was involving a ship that violated the embargo and they were seeking the forfeiture of that ship

618
01:03:01.300 --> 01:03:12.300
and the defense tried to argue that the federal government has the power to regulate interstate and foreign commerce, but that power cannot be, these are their words,

619
01:03:12.300 --> 01:03:18.300
cannot be understood to give a power to annihilate. So in other words, if the federal government has the power to regulate interstate and foreign commerce,

620
01:03:18.300 --> 01:03:21.300
does not give it the power to annihilate foreign commerce.

621
01:03:21.300 --> 01:03:27.300
So the embargo, according to the defense, was unconstitutional, but the court rejected this

622
01:03:27.300 --> 01:03:34.300
and instead began going down the path of taking the commerce clause and interpreting it very broadly

623
01:03:34.300 --> 01:03:38.300
and began arguing that, quote, the great impending peril of the times,

624
01:03:38.300 --> 01:03:43.300
by which they meant British and French assaults on American commerce,

625
01:03:43.300 --> 01:03:49.300
and Commerce meant that the Commerce Clause, quote, must take a still more expanded range.

626
01:03:49.300 --> 01:03:53.300
So the embargo is constitutional.

627
01:03:53.300 --> 01:03:57.300
What's significant here is that even though a federal court ruled the embargo constitutional,

628
01:03:57.300 --> 01:04:01.300
the New England states did not consider that to be the end of the story.

629
01:04:01.300 --> 01:04:05.300
Oh, a federal court has ruled, let's all bow down and wave incense before it.

630
01:04:05.300 --> 01:04:09.300
They didn't say that. To the contrary, they continued pressing the point.

631
01:04:09.300 --> 01:04:20.300
In early 1809, the Massachusetts Senate, which described the Union as a confederation of equal and independent states with limited powers, dealt with this question.

632
01:04:20.300 --> 01:04:26.300
Did the fact that a federal court had found the embargo to be constitutional, did that settle the matter?

633
01:04:26.300 --> 01:04:31.300
I mean, are we all done arguing? Absolutely not, said the Massachusetts Senate.

634
01:04:31.300 --> 01:05:01.300
They said that were true, that the measures of government, once passed into an act, the constitutionality of that act is stamped with the seal of infallibility and is no longer a subject for the deliberation or remonstrance of the citizen, to what monstrous lengths might not an arbitrary and tyrannical administration carry its power, were such doctrines sound, what species of oppression might not be inflicted on the prostrate liberties of our country.

635
01:05:01.300 --> 01:05:05.300
If these doctrines were true, our Constitution would be nothing but a name,

636
01:05:05.300 --> 01:05:13.300
nay worse, a fatal instrument to sanctify oppression and legalize the tyranny which inflicts it.

637
01:05:13.300 --> 01:05:18.300
Well, both houses of the Massachusetts legislature described the embargo acts as being,

638
01:05:18.300 --> 01:05:23.300
quote, in many particulars, unjust, oppressive and unconstitutional.

639
01:05:23.300 --> 01:05:28.300
And they said, while this state maintains its sovereignty and independence,

640
01:05:28.300 --> 01:05:33.780
All the citizens can find protection against outrage and injustice in the strong arm of

641
01:05:33.780 --> 01:05:35.860
the state government.

642
01:05:35.860 --> 01:05:43.580
And the embargo, they said, was, quote, not legally binding on the citizens of this state.

643
01:05:43.580 --> 01:05:50.300
And although Massachusetts, at no time did they say we have to just obey this law and

644
01:05:50.300 --> 01:05:51.300
deal with it.

645
01:05:51.300 --> 01:05:56.380
What they did say was, quote, all parties aggrieved, they simply said that all parties

646
01:05:56.380 --> 01:06:05.380
should abstain from forcible resistance, but in effect they're more or less saying just try to ignore it the best you can.

647
01:06:05.380 --> 01:06:20.380
Interestingly, during this crisis, a New York congressman who expressly called into the discussion the Virginia and Kentucky resolutions of 1798 said,

648
01:06:20.380 --> 01:06:27.380
said, why should not Massachusetts take the same stand when she thinks herself about to be destroyed?

649
01:06:27.380 --> 01:06:31.380
So there's a reference there to the principles of 98.

650
01:06:31.380 --> 01:06:35.380
Again, an idea that has just disappeared, there it is.

651
01:06:35.380 --> 01:06:42.380
A Connecticut congressman said, if any state legislature had believed the act to be unconstitutional,

652
01:06:42.380 --> 01:06:46.380
would it not have been their duty not to comply?

653
01:06:46.380 --> 01:07:03.380
And then he added that the state legislatures, and then these are his words, whose members are sworn to support the Constitution, may refuse assistance, aid or cooperation, unquote, if they think a federal act is unconstitutional and state officials could do likewise.

654
01:07:03.380 --> 01:07:06.580
The Connecticut governor spoke this way,

655
01:07:06.580 --> 01:07:13.780
Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers,

656
01:07:13.780 --> 01:07:18.780
on the state legislatures in great emergencies devolves the arduous task,

657
01:07:18.780 --> 01:07:25.780
it is their right, it becomes their duty, to interpose their protecting shield between the right and liberty of the people

658
01:07:25.780 --> 01:07:28.180
and the assumed power of the general government.

659
01:07:28.180 --> 01:07:30.780
Well there's Madisonian interposition.

660
01:07:30.780 --> 01:07:47.780
Connecticut goes on to say this General Assembly are decided in the opinion and do resolve that the acts aforesaid are grievous to the good people of this state, dangerous to their common liberties, incompatible with the Constitution of the United States, and encroaching upon the immunities of this state.

661
01:07:47.780 --> 01:08:05.780
And that resolution went on and in fact directed the executive, obviously the executive branch enforces, trusted with the enforcement of the law, instructed executive officials in the state not to offer, quote, any official aid or cooperation in the execution of the Act aforesaid.

662
01:08:05.780 --> 01:08:12.780
And, quoting just one more time from Connecticut, we have this statement.

663
01:08:35.780 --> 01:08:45.780
will not permit this assembly to assist or concur in giving effect to the aforesaid unconstitutional act passed to enforce the embargo.

664
01:08:45.780 --> 01:08:53.780
And finally Rhode Island, when the embargo was at its conclusion, declared that the legislature of Rhode Island had the duty,

665
01:08:53.780 --> 01:09:03.780
quote, to interpose for the purpose of protecting the people of Rhode Island from the ruinous inflictions of usurped and unconstitutional power, unquote.

666
01:09:03.780 --> 01:09:10.780
Again, to interpose, there is the language of the principles of 1798.

667
01:09:10.780 --> 01:09:16.780
Now, I've been, for a number of years now, I've been teaching American history having to use a textbook.

668
01:09:16.780 --> 01:09:22.780
There is no textbook that I know of, now I'm happy to be corrected, that uses any of these quotations

669
01:09:22.780 --> 01:09:27.780
or makes any reference to the principles of 98 in connection with this, but it goes to show this is an ongoing idea.

670
01:09:27.780 --> 01:09:32.780
It's not just something that Jefferson and Madison thought of and then everybody was embarrassed by it and nobody talked about it anymore.

671
01:09:32.780 --> 01:09:36.220
and more. Even the very section of the country that had been most vocal in their opposition

672
01:09:36.220 --> 01:09:41.260
to it, ten years later is now saying, hey, Virginia and Kentucky resolutions, hey, all

673
01:09:41.260 --> 01:09:44.900
the cool kids are interested in the Virginia and Kentucky resolutions all of a sudden.

674
01:09:44.900 --> 01:09:48.900
What a wonderful and glorious thing. Well, there's much more to be said in the future,

675
01:09:48.900 --> 01:09:55.900
which we'll be doing tomorrow, like things involving disputes in the War of 1812 and

676
01:09:55.900 --> 01:10:00.140
Daniel Webster's beautiful speech about why conscription is incompatible with liberty

677
01:10:00.140 --> 01:10:06.180
and all this and the National Bank and how they try to stop it, just glorious examples

678
01:10:06.180 --> 01:10:10.460
of the states and I mean they're still states after all, we can't get that excited about

679
01:10:10.460 --> 01:10:15.060
them, but the fact that they stand up and get right in the face of the big federal behemoth

680
01:10:15.060 --> 01:10:20.300
is such a glorious thing to see when today they're absolutely demoralized and ground

681
01:10:20.300 --> 01:10:24.300
down, they don't dare to say anything, they don't dare to resist and they don't want

682
01:10:24.300 --> 01:10:26.960
their highway money taken away or whatever.

683
01:10:26.960 --> 01:10:31.400
It reminds you that there used to be people who were courageous and politically creative

684
01:10:31.400 --> 01:10:37.200
rather than simply referring every single matter to be decided by Washington D.C.

685
01:10:37.200 --> 01:10:43.960
Well having said that, I will take any comments on this or question, I'll happily take them.

686
01:10:43.960 --> 01:10:46.960
Okay, I have one, two, and then three.

687
01:10:46.960 --> 01:10:48.960
I don't have any questions, that's all right.

688
01:10:48.960 --> 01:10:49.960
Sure.

689
01:10:49.960 --> 01:10:52.960
The comment is, you were talking about Joseph's story,

690
01:10:52.960 --> 01:10:54.960
talking about the various states where they're outfitted

691
01:10:54.960 --> 01:10:56.960
on all these interests and national interests.

692
01:10:56.960 --> 01:10:59.960
I think that's an argument against Joseph's stories,

693
01:10:59.960 --> 01:11:01.960
national interests.

694
01:11:01.960 --> 01:11:03.960
I was thinking that, I think that's just,

695
01:11:03.960 --> 01:11:08.960
for example, with NATO, there's some alliance that

696
01:11:08.960 --> 01:11:23.640
Right. Yeah, exactly. That's right. That's right. But I think – I think the analogy

697
01:11:23.640 --> 01:11:30.640
is apt between – and, again, just repeating the question – between NATO being an entity

698
01:11:30.640 --> 01:11:36.220
that nobody confuses with a country, but that has – nevertheless is an alliance that serves

699
01:11:36.220 --> 01:11:46.220
and certain purposes in a corporate way, but then at the same time is, you know, consists of smaller independent militaries and so I think that is an apt comparison and did you have a question?

700
01:12:06.220 --> 01:12:23.220
So if you only have 13 states, and we don't have a United States at that point, or there's an American nation, then can you still say there's an American nation and there's a culture of economics?

701
01:12:36.220 --> 01:12:51.220
I'm not really sure how to answer that, because my main concern is that unwarranted extrapolation from cultural commonalities not be drawn.

702
01:12:51.220 --> 01:13:00.220
I would just be concerned that people like Story would say, well look, we all speak the same language and we all have this and that in common,

703
01:13:00.220 --> 01:13:03.220
so in effect in some mystical way we are in fact one people.

704
01:13:03.220 --> 01:13:09.260
In a certain sense, I may feel a kinship with people who share these different qualities

705
01:13:09.260 --> 01:13:16.420
of mine, but living in a political age when the conclusion ever since the 19th century

706
01:13:16.420 --> 01:13:21.700
to be drawn from this is that therefore we should have our own state together, just makes

707
01:13:21.700 --> 01:13:26.260
me want to not talk about this whole line of thought, really, because I don't want

708
01:13:26.260 --> 01:13:29.260
to encourage them, basically.

709
01:13:29.260 --> 01:13:41.260
According to the Nationalists, why did the Founders even bother with the Constitution or the Article of Confederation?

710
01:13:41.260 --> 01:13:51.260
Shouldn't they just have been able, on the Nationalist's account, just by the fiat of the Congress or whatever, create the kind of government they wanted?

711
01:13:51.260 --> 01:13:56.260
Did they have an explanation for why it was necessary to have these conditions?

712
01:13:56.260 --> 01:14:02.260
Yeah, I mean, I think, because that is an argument that's raised against them, actually.

713
01:14:02.260 --> 01:14:10.260
That's an argument that Upshur raises. The question being, you know, if the nationalists believe that there is one people all this time,

714
01:14:10.260 --> 01:14:17.260
then really what's the point of drafting the Articles of Confederation or the Constitution, then having it ratified?

715
01:14:17.260 --> 01:14:30.260
If the First Continental Congress had been established by the fiat of the whole, by the will of the whole people, then couldn't the fiat of that organization, that Continental Congress,

716
01:14:30.260 --> 01:14:34.260
couldn't they just have imposed something? Why would they have to go through all these awkward channels?

717
01:14:34.260 --> 01:14:45.260
I think maybe the argument they would use would be that you do want to get the broadest possible consent to the political order that you're establishing.

718
01:14:45.260 --> 01:14:51.260
And so, at the very least, you would want the people to be able to debate it and discuss it

719
01:14:51.260 --> 01:14:54.260
so that they can feel like it's not something wholly alien to them

720
01:14:54.260 --> 01:14:57.260
and it's not something that was imposed without their input.

721
01:14:57.260 --> 01:15:00.260
And, you know, this would make it function more smoothly

722
01:15:00.260 --> 01:15:05.260
if they felt that it was something, you know, that emerged in some way from their own will.

723
01:15:05.260 --> 01:15:10.260
But I wonder if some of the more extreme ones might secretly say that, you know, that's really the only...

724
01:15:10.260 --> 01:15:13.260
You know, it's just to give people a sense of belonging.

725
01:15:13.260 --> 01:15:42.260
I have a question, a comment. The question is, in the embargo, was that just an executive decision, or what did Congress have to say? It looks like it was clearly an act of war.

726
01:15:42.260 --> 01:15:46.260
So, what sort of it could have been?

727
01:16:12.260 --> 01:16:21.260
So basically it is, you know, it is congressionally authorized, but it leaves a tremendous discretion to the executive to deal with individual cases.

728
01:16:21.260 --> 01:16:23.260
The Congress did actually embark on it.

729
01:16:23.260 --> 01:16:24.260
Yes.

730
01:16:24.260 --> 01:16:25.260
Oh, okay.

731
01:16:25.260 --> 01:16:26.260
And then it was repealed.

732
01:16:26.260 --> 01:16:32.260
And the comment was only there was a 14th colony that remained loyal.

733
01:16:32.260 --> 01:16:35.260
It's the smallest colony and didn't participate.

734
01:16:35.260 --> 01:16:38.260
That, of course, is the colony of West Florida.

735
01:16:38.260 --> 01:17:07.760
And so nobody went into West Florida and and tarred and feathered anybody, right? So, well, I'd love to talk about is, is, are there hurricanes like everywhere in Florida? Are there parts that you could be safe? Are there any parts you can be safe in Florida?

736
01:17:08.260 --> 01:17:23.260
So now we're going to be talking about the Bonnie Blue flag, right?

737
01:17:23.260 --> 01:17:27.260
No, West Florida was the Bonnie Blue flag.

738
01:17:27.260 --> 01:17:52.260
I actually have a second question. Did the federal government have any sort of agency that they had to enforce this? I guess like a customs or police agency, or did they just rely entirely on the states to enforce it?

739
01:17:57.260 --> 01:18:23.260
You sort of alluded to this in the remark that, after all, it was just states looking. I get too excited, but for somebody from a Rothbardian perspective, who might be inclined to dismiss all of this and say, well, why would I study these disputes if it's all based on illegitimate things anyway? Is there an answer to give to that?

740
01:18:27.260 --> 01:18:32.260
in the first place, then who the heck cares about any of this?

741
01:18:32.260 --> 01:18:39.260
And part of the answer I gave is that given that most of the world is not coming at life from this perspective,

742
01:18:39.260 --> 01:18:51.260
it does buttress. I mean, I think if your particular historical tradition in some ways does buttress a pro-liberty position,

743
01:18:51.260 --> 01:18:55.260
then you should make it another of the arguments in your arsenal, because some arguments appeal to some people,

744
01:18:55.260 --> 01:18:58.180
Some people, some arguments appeal to others. I mean, it's like if you're trying to...

745
01:18:58.180 --> 01:19:02.700
If you're a missionary and you're trying to convert somebody to, let's say, Christianity,

746
01:19:02.700 --> 01:19:06.260
I mean, some arguments work with some people, some don't. I mean, emotional arguments work

747
01:19:06.260 --> 01:19:10.540
with some people, like, look at how beautiful Christ's life was and people get weepy and

748
01:19:10.540 --> 01:19:15.620
they love that. Other people say, but look at how logical it is. Like Saint Anselm would

749
01:19:15.620 --> 01:19:19.580
say, it makes perfect sense that God should have become man. And that works for other

750
01:19:19.580 --> 01:19:24.140
people. You know, so I feel like whatever argument works, you know, should work. But

751
01:19:24.140 --> 01:19:28.540
I guess my point would just simply be, all I want to say to my fellow Americans basically

752
01:19:28.540 --> 01:19:38.180
is that you don't have to sit, you don't have to sit in this supine, abject, pathetic way

753
01:19:38.180 --> 01:19:44.380
and sit here and accept all these federal mandates and incursions in your life when

754
01:19:44.380 --> 01:19:51.660
we have states that, states are, institutionally they're more powerful than just scattered

755
01:19:51.660 --> 01:19:58.100
Individuals that have resisted in the past, given that the states exist, they are institutional

756
01:19:58.100 --> 01:20:04.900
mechanisms that exist, and they can be used, as we've seen, to keep the federal government

757
01:20:04.900 --> 01:20:09.660
in check, then anything that can be used to keep the federal government in check, I favor

758
01:20:09.660 --> 01:20:10.660
using.

759
01:20:10.660 --> 01:20:13.340
Then, of course, we have to keep that thing in check, and believe me, we've got to keep

760
01:20:13.340 --> 01:20:18.460
an eye on the state government too, but it seems to me that this is another angle that

761
01:20:18.460 --> 01:20:19.660
we could legitimately take.

762
01:20:19.660 --> 01:20:27.660
I know that Rothbard himself typically was a localist. He believed in natural rights,

763
01:20:27.660 --> 01:20:32.260
but he believed in the local enforcement of those rights, just simply as a practical matter

764
01:20:32.260 --> 01:20:40.380
because it would be, as I'm going to say tomorrow, if the mafia is giving you a problem, as Stephan

765
01:20:40.380 --> 01:20:44.540
Kinsella would say, it's not necessarily the best idea to go say, well, I'll go get a much

766
01:20:44.540 --> 01:20:48.620
bigger mafia to protect me from the smaller mafia. I mean, in the short run, that might

767
01:20:48.620 --> 01:21:12.620
I was fascinated by the Ludwig von retreat in poetry. I'm wondering, when you hold somebody's feet to the coals on constitutional issues, what sort of retreat do you find?

768
01:21:18.620 --> 01:21:26.500
at the URL tonight to a critique of my treatment of nullification that was written by one of

769
01:21:26.500 --> 01:21:29.380
the people associated with the Claremont Institute.

770
01:21:29.380 --> 01:21:37.940
And you can sort of see the types of arguments that they make.

771
01:21:37.940 --> 01:21:44.800
Because they'll quote things that Madison did say, but the fact is I have an all-purpose

772
01:21:44.800 --> 01:21:48.180
Madison for any occasion, and that doesn't settle anything.

773
01:21:48.180 --> 01:21:53.220
If we're just going to sit here and appeal to authority, when that authority contradicts

774
01:21:53.220 --> 01:21:56.060
himself, frankly, I think that can be shown.

775
01:21:56.060 --> 01:21:57.060
That's not helpful.

776
01:21:57.060 --> 01:22:05.580
So I think there's that and what they say, I think it's more of an emotional thing that

777
01:22:05.580 --> 01:22:12.220
secession and nullification just seem chaotic to people, or they are out of the mainstream.

778
01:22:12.220 --> 01:22:15.860
So there's this thinking that, well, if only we could just, I think the Claremont people

779
01:22:15.860 --> 01:22:19.940
People think that if only we could just enforce the Constitution and we could get people who

780
01:22:19.940 --> 01:22:25.420
believe in natural rights to be elected, then that would be the way of dealing with it.

781
01:22:25.420 --> 01:22:30.180
And I don't remember the name of the program, but I was on one of these sort of right-wingy

782
01:22:30.180 --> 01:22:34.860
radio shows a few months ago, and the whole thing ended up being this big, long argument

783
01:22:34.860 --> 01:22:39.060
about do the states have a right to secede, and I absolutely insisted they did.

784
01:22:39.060 --> 01:22:42.340
And I said, look, you don't even have to want to secede to at least believe that they have

785
01:22:42.340 --> 01:22:44.340
The Theory of Money and Credit

786
01:23:12.340 --> 01:23:15.340
What strategy has been working out for you? Has that been working okay?

787
01:23:15.340 --> 01:23:22.340
Doesn't that sort of answer itself? Like this hasn't worked, so let's keep trying it and then see what happens.

788
01:23:22.340 --> 01:23:25.340
Or you're crazy to bring up nullification as a session.

789
01:23:25.340 --> 01:23:33.340
When everything you've tried has not only not worked, but the situation has gotten worse exponentially,

790
01:23:33.340 --> 01:23:35.340
Maybe