All right, here we are after lunch, and unfortunately, I've got to make the talk after lunch much livelier,
especially since half of you had turkey. Thanks a lot, Lew Rockwell, for choosing turkey sandwiches,
of all things, with whatever that stuff is in there that makes you go to sleep.
So we're going to carry on from last time and shift gears a little bit and sort of give an accounting
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.
A few loose ends to tie up from the previous lecture would be the following.
I mentioned in answer to someone's question that there's an important pamphlet to read by Richard Bland from 1765 that lays out a very interesting perspective on what the status of the colony of Virginia was.
And the title of that is An Inquiry into the Rights of the British Colonies.
So nothing particularly difficult about that, but I just couldn't remember it. I looked it up.
The other thing is, I was talking to Mark Thornton at lunch, and he said, maybe I ought to say a little something about what happened, what became of the Alienous Addition Acts after all.
And so I think I will just mention that, as I said in the talk, the Alienous Addition Acts were set to expire on the last day of that administration.
which, by the way, also suggests perhaps the partisan nature of it
because as soon as a new president comes in, he won't be able to use those acts any longer
So Jefferson, of course, is elected in 1800 and he allows the Alien and Sedition Acts to expire
and he lets everybody out of jail who had been imprisoned under them
and that's the end of that. Jefferson wins a tremendous victory in 1800
it's sometimes called the Revolution of 1800
It's interesting to note, though, that Jefferson had not, as I said, been eager to appeal to the Supreme Court on this matter, and not only because of his views on concurrent review versus judicial review, but also because of the simple fact that the Supreme Court, in his day, he believed would be likely to uphold the legislation, and it's interesting that a little over a century later, when there was sedition legislation passed during World War I, the Supreme Court in fact did uphold it as being acceptable.
I always tell my students of a case during World War I where you had a Christian minister from Vermont who wrote a pamphlet in which he argued that it would be wrong for a Christian to take part in that war, and he distributed this pamphlet to a grand total of five people.
And for that offense, he was sent to prison for 15 years.
So, you know, the Supreme Court ain't going to help you out a whole leg of a lot in times like that.
And finally, just tying up one last thing, over lunch we were talking about how funny it would be
if all of a sudden, on the op-ed pages and the television news programs and political commentary,
all of a sudden people started talking about nullification.
Like all of a sudden the word just kept being used over and over again, and, you know, I don't expect that to happen, but I did point out that, I mean, think about the way a lot of people get their names put out there as potential presidential candidates.
It's mainly because major media people start talking them up, like Larry King starts talking them up or big prominent politicians start talking them up.
For example, how else can we account for how Elizabeth Dole was ever a presidential candidate?
I mean, was anyone ever sitting around saying, my gosh, if I can't vote for Elizabeth Dole, what kind of country is this?
I mean, no one, right?
But it's just that a few people started saying, you know, I think Elizabeth Dole would make a great president.
And then, of course, Bob Dole comes out and says, you know, I think Elizabeth would be great.
No one would have thought of her until they were prodded.
Then, of course, well, of course, Elizabeth Dole.
The same way that I don't think on their own a lot of people would have said, you know what,
But we've got to invade Iraq, for heaven's sake. It's a terrible danger. Its defense
budget is almost a quarter of one percent of our own, and we've really got to crack
down on them. It's not the sort of thing that people would have just thought of automatically.
They think of it because everybody talks about it, and you think, of course you've got to
be crazy not to pay for that. So there's some kind of herd mentality out there. It seems
to me, why can't we use the herd mentality for something good? So let's start talking
I'm talking about nullification as much as we can, if nothing else will drive people crazy, the bad guys crazy.
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, nevertheless, it's just so much darn fun fighting against the bad guys.
And so you've got to take comfort from that.
Okay, I don't know if any of you were here for Joe Salerno's seminar a couple weeks ago.
I'm going to make a couple references to it later in the week.
I watched a little bit of it over the webcast, and it's not that I want to wish Joe ill.
I mean, I wish him every good wish in the world, and he's a wonderful guy, and he deserves every good thing.
It sure would have been a lot easier on me, though, if he'd given a really crummy seminar, you know,
because then by comparison I could have a, it's just an average seminar would seem great.
But Joe naturally has to give this brilliant, genius seminar, thanks a whole lot.
So anyway, we'll see, we'll see how I can do maintaining the standard.
Well, what I'd like to start with is a guy, again, you've not heard of and we don't hear much about,
but a guy whose material I'd like to encourage a renaissance in, and that is this fellow, Abel Upsher, U-P-S-H-U-R,
and I want to look at him in the first part of this talk in relation to these issues of the states and the federal government,
because he's excellent.
What I want to focus on in particular is an issue I've covered in the past in various forms, and it's this.
What was the nature of the Union, the Federal Union of the United States?
And this is a debate that goes on in the 19th century.
It really begins to solidify into a full-fledged debate around 1830 with the Webster-Hain debate,
with Daniel Webster arguing against Robert Hayne. They're both senators, one from Massachusetts, one from South Carolina.
And they're talking about what is the nature of the Union. And Webster is taking what has sometimes been called the nationalist position.
In fact, Webster gives a famous speech several years later called, The Constitution, Not a Compact Among Sovereign States.
So he's arguing exactly the opposite of what we've seen so far. Webster takes that view. Webster, this has been, as I say,
This has been called the nationalist theory, because for Webster, the United States is fundamentally one.
At its root, it's one entity. It is not a collection of states, it's not a confederation of states, it's 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.
He doesn't say 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, certainly they don't have independent existences
of their own. That's Webster's view that he expounds at great length in the 1830s and
with great rhetorical effect. Webster was in the top tier of American orators and he
wins some interesting historical point. I think he's wrong but he's not an idiot and
and he's not an ineffective speaker by any means.
So this nationalist view thinks of the United States
as being composed of a single American people
taken in the aggregate rather than as individual states
composed of separate peoples.
Whereas this other view that Upshaw maintains,
that Calhoun takes, that Thomas Jefferson took,
is sometimes called the compact theory
because it views the United States
as being fundamentally plural.
The United States are, was the common way of speaking, because the emphasis was on the plurality, that it's more than one, it's not just one entity.
And so according to the compact theory, 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,
This 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,
and they maintain their sovereignty and their rights of self-government, well then at least it makes sense.
You don't have to agree with it, but at least it's a sensible conclusion to say the states have the right to protect themselves
The Nationalist and Unconstitutional Law
The Nationalist pretty much views the states as just kind of arbitrary boundary lines.
So from their point of view, a group of people in some arbitrary boundary line are refusing to obey a law.
So 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.
What also can follow from the compact theory is the idea of secession.
Because if the United States is a plurality of states, each of them having its own life,
then it's at least not a crazy step to say that that state would also have the ultimate decision.
As much as it could join the Union, it could also withdraw from it.
Whereas again, if you believe that the United States is a single whole and you are a nationalist,
then you would tend not to think that.
If you had secession going on, you would again view that simply as a revolutionary insurrection.
You couldn't even conceive of the idea that this is a sovereign people withdrawing its consent and not wishing to be governed into that structure any longer.
This is why at the end of the semester after I've explained this distinction to my students, which is a distinction that is often just passed over and no one wants to talk about it,
and inevitably something about the Pledge of Allegiance comes up.
There's always something about is it legitimate or should under God be in there?
I asked them, well, on the basis of what we've learned this semester,
apart from whether you should have a pledge of allegiance or not,
the question would be, what do you think would be most objectionable
to, say, somebody like Thomas Jefferson about it?
Would it be the under God part, which is added later?
Maybe, but probably not, because what would be the worst part than that?
It would be the indivisible part.
And they all start thinking, oh my gosh, is this treason?
I can't believe I'm talking about this in the classroom, but, you know, I want them to think. They should think about these things.
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.
And 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, he wrote his commentaries on the Constitution of the United States in 1833 and he takes this nationalist position.
You might say John Marshall, a long time Supreme Court Chief Justice takes this position as well.
Now I was at a conference not long ago sponsored by Liberty Fund, they have these colloquia, invitation only colloquia where they have about 15 people and a discussion leader and somebody else and we get together
I think it's like one of the few outposts of civilization that is still out there where you get together and they pay you to do this.
Unfortunately, I haven't been at one in a long time, but there are great, wonderful, wonderful events.
I remember going to one of them and I got up to go to the restroom and then I returned to my table at the dinner
and the waiter was waiting to put the napkin back on my lap and I thought,
you know, historians can't afford this kind of treatment most of the time.
I was waiting to put the napkin back on my lap and I thought, you know, historians can't afford this kind of treatment most of the time, so I appreciate it.
But at that event we were talking about the Webster-Hain debate, which was a major debate over this very issue.
It started off as a debate over the disposition of the public lands and it eventually developed into a full-scale debate over the nature of the Union.
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
and the weekend was devoted to covering that subject
and most of the people there supported Daniel Webster in the nationalist view
and I think it was just Clyde Wilson and me
who were arguing for Hayne and the other side
And what was interesting to me was that the Webster side more or less conceded to us
that all right, strictly speaking, historically you guys have the better argument,
but Webster's argument savers more of poetry and this sort of thing.
And I thought, well, I don't think you can really like overturn a whole settled order on the basis of poetry, right?
I mean, you have to have a rigorous argument.
So I was totally unmoved by their claims.
Well, Upshaw wrote, as I said in my previous talk, in 1840, he wrote a book called
A Brief Enquiry into the True Nature and Character of the Federal Government,
Being a Review of Judge Stories Commentaries on the Constitution of the United States.
That's the title. We'll just call it the brief inquiry.
That's Upshaw's book, and it's short. It's probably 150 pages.
It was recently brought back into print by an extremely obscure legal press and it was super expensive and then it's fallen out again.
It's basically not read anymore. But I don't know why that is. Well, I do know why that is.
It's not saying what people want it to say, but it's a fascinating and really, really excellent treatment of this stuff
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.
Now one of the positions that the nationalist folks have typically taken, and of course, by the way, this culminates in Lincoln, who considers secession, although he does make a comment about secession being okay in 1848,
he does more or less view the Union as being one single indestructible that our fathers brought forth on this continent, a new nation in 1776, Lincoln would say, even though of course it was 13 separate states, this all culminates in Lincoln.
A common theme that you hear throughout these guys is that the people who compose what we call the United States,
as early as the colonial period, began to constitute one people.
At some point in that colonial period, Americans began to, in some ways, coalesce into a single people.
And it's from this idea of Americans as constituting a single people,
It's on that base that they build this sort of superstructure of this nationalist theory
that it's wrong to place too much emphasis on the powers of the states given that Americans were very, very early on one people.
So here's what Joseph's story says, developing this idea.
He says, although the colonies, so of course he's talking about from 1607, the settlement of Jamestown all the way up to the 1770s,
Although the colonies were independent of each other in respect to their domestic concerns,
they were not wholly alien to each other.
On the contrary, they were fellow subjects and for many purposes one people.
Every colonist had a right to inhabit if he pleased in any other colony
and as a British subject he was capable of inheriting lands by descent in every other colony.
The commercial intercourse of the colonies too was regulated by the general laws of the British Empire
and could not be restrained or obstructed by colonial legislation.
So this is some evidence that he is inducing that you in fact do have one people here
and so that it's not a long stretch to look at the United States as being a single whole fundamentally.
Likewise, John Jay, who was the first Chief Justice of the U.S. Supreme Court said,
All the people of this country were then, referring to the colonial period, subjects of the King of Great Britain and owed allegiance to him, and all the civil authority then existing or exercised here flowed from the head of the British Empire.
They were, in a strict sense, fellow subjects, and in a variety of respects, one people.
Now, this is all very loose language, though, because we have John Jay saying, in a variety of respects, one people, Joseph Story saying, for many purposes, one people.
Well, how about some specifics? How exactly were they one people?
Well, Upshur is going to develop this and look into is this true or not?
And he looks at the evidence induced by historian Jay and he says,
every one of these historical facts is the result of the relation between the colonies and the mother country
and not the result of the relation between the colonies themselves.
And he goes on to say that although these facts that we've just heard
So far as the rights of the mother country are concerned, they existed in the same form and to the same extent over every other colony of the empire.
That is the right to make commercial legislation for the colonies, etc.
Did this make the people of all the colonies one people?
If so, the people of Jamaica, the British East Indian possessions, and Canada are, for
the very same reason, one people to this day.
If a common allegiance to a common sovereign and a common subordination to his jurisdiction
are sufficient to make the people of different countries one people, it is not perceived
Why the people of Gaul, Britain and Spain might not have been one people, while Roman provinces.
Now, Upshur defines the term people, like what would it mean to be one people?
He says this way, he says, we're speaking of a political corporation, the members of which owe a common allegiance to a common sovereignty
and do not owe any allegiance which is not common, who are bound by no laws except such as that sovereignty may prescribe,
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.
Now, let us look at the American colonies and see if in any way they could be described as one people.
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.
It was an individual allegiance held separately by each colonial government.
It does not amalgamate them because each one of them separately is loyal to the British King.
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.
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.
So this seems to be a fairly major way in which they are not one people.
They paid no taxes to another colony. They did not serve in the militia of another colony.
They didn't vote in its elections.
There was no official capacity in which the colonies could act politically as one people.
And in fact, one of the points I make in my first chapter of my book is that
very often when the colonies were invited to join inter-colonial confederations,
Confederations, either to guard against Indian attacks or for whatever purpose, they were
extremely reluctant to do so and they did so only with grave reservations. So that's
an additional consideration. Their distinctness is evident even in Britain's dealings with
them. They were not established at the same time. They were established under an authority
that applied to themselves alone. Many of them had their own charters. They had different
and organizations, different types of 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.
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,
Separate and distinct in political functions, in political rights, and in political duties.
Separate, not one people. A multiplicity of peoples.
In fact, at one point later on in American history, long after the colonial period,
into the 19th century, John C. Calhoun, one of the great compact theorists,
actually said that, strictly speaking, there is no such thing as the American people.
There is no such thing. There are the people of Massachusetts, the people of Vermont, the people of South Carolina, but there is no such thing as the American people.
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,
is both for the Boston Tea Party and other insubordination.
And for Joseph's story, the First Continental Congress represents a general national government.
It was organized with the consent of the people acting in their primary sovereign capacity.
Well, let's look at the First Continental Congress. What exactly was it?
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?
What should we do with these coercive acts?
And they developed a series of responses.
But was this in fact a government, this First Continental Congress?
And did it in fact represent the maturation of one people?
Well, according to the story, the United Colonies, in this case,
must be considered as being a nation de facto as a result.
Well, let's look at more detail as to what the First Continental Congress of September,
that began September 1774, what did it consist of, what was it?
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.
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.
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.
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.
He says, in point of fact, the Congress, the First Continental Congress was a deliberative and advisory body and nothing more.
And for this reason, it was not deemed important or at least not indispensable that all the colonies should be represented.
Since the resolutions of Congress had no obligatory force whatsoever,
it was appointed for the sole purpose of taking into consideration the general condition of the colonies
and of devising and recommending proper measures for the security of their rights and interests.
Now, he goes on to conclude that given that the acts of the First Continental Congress
appeared in the form of resolutions rather than in the form of laws and commands,
that they were recommended to their constituents, like each colony had sent delegates,
those delegates recommended these measures to their constituents,
whatever they thought were 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.
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.
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.
So it does not prove what story wants it to prove.
What it actually shows is that the colonies are still just as independent as before,
or just as distinct as before, even if for certain limited purposes they may wish to collaborate,
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.
Okay, let's go on. This, okay. Likewise, let's finish this.
Upshur goes on to note that the first Continental Congress decides they're going to meet again next year,
so there'll be a second Continental Congress, which there was following the battles of Lexington and Concord in May of 1775.
They met again as the second Continental Congress and then they just don't go out of existence.
It stays functioning throughout the war for independence.
And it's a structure that I guess we have to for shorthand call it a government.
We should understand that it's not like the U.S. government under the Constitution.
It has one branch. It has basically a legislative branch.
And even there, they have no coercive powers over the colonies now becoming states.
Once they recognize their independence, we'll just call them states, but still colonies in 1775.
They have no powers of coercion over them.
So once again, we don't have a single people operating in some originally sovereign way.
We have instead a multiplicity of states once again sending delegates.
The first recommendation to send deputies to this general congress was issued to the colonies as such.
Each colony acted for itself, choosing its own delegates, did not interfere in the choice of any other colony.
And when they met, they governed, they voted by colony, each colony got one vote.
No matter how great their population or how many delegates they sent, they got one vote.
Again emphasizing that the fundamental unit is the colony.
Certainly, if this were a national government, if this Second Continental Congress and the Congress that followed were a national government,
this would not have functioned this way, would not have granted such centrality to the individual colonies in the government.
Until the adoption of the Articles of Confederation, which was not adopted until 1781.
This is the document that, as you know, precedes the Constitution.
Until that time, 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 about 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.
But what's significant is that there is nothing in the powers that were exercised by this Congress
around the time of the War for Independence, even prior to the Declaration and then shortly afterward and before the Articles of Confederation.
So from 1775 to 81, nothing that is done by that government or that institution, that Congress,
is inconsistent with the idea of the states retaining their absolute liberty and independence.
It's true that, as Story would point out, that this Congress did assume the right to declare war and make peace,
to authorize captures, to institute appellate prize courts, to direct and control all national, military and naval operations,
to form alliances and make treaties, to contract debts and issue bills of credit on national account.
But, these powers were not by any means exclusive to the Congress.
And in fact, when the troops were raised, or vessels of war were commissioned,
or various military operations were conducted by the colonies,
these were done by the colonies in their own separate manner.
Ticonderoga, according to as Upshur points out, was taken by the troops of Connecticut before the Declaration of Independence.
Massachusetts and Connecticut fitted out their own vessels to cruise against English ones.
In October 1775, South Carolina followed suit.
New Hampshire authorized her executive branch to issue letters of mark and reprisal,
which again, these are the functions of sovereign entities.
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 right and powers to that matter.
They proved that Congress exercised no power which was considered as abridging the absolute sovereignty and independence of the states.
Interestingly, for example, another thing that shows the limits of the powers Congress had, although the Congress was allowed to issue bills of credit,
they couldn't make them legal tender, they couldn't punish counterfeiters of them, they couldn't bind the states to redeem them,
They could receive ambassadors, but they had no power to extend to ambassadors the protection that ambassadors typically enjoy under international law that they would typically receive from the government of a sovereign nation.
They had no authority to extend that protection to them.
So there's an interesting case of a fellow named de Longchamp who entered the house of the French minister plenipotentiary in Philadelphia
and threatened to commit violence against the Secretary of the French Legation, the Consul General of France, and later in fact did assault and beat this guy in the public street.
For this offense, de Longchamp was indicted and tried in a Philadelphia court and punished.
Well, the question arose whether the authorities of Pennsylvania should in fact deliver up this man to the French government and let the French government deal with him however they wish.
But at no time do we see the federal government being thought of as possessing any authority over this matter, or that in any way was it appropriate or proper to refer this to the federal government, even though, as I've said, offering protection to diplomats from other countries is considered to be a power that follows from sovereignty and that follows from a sovereign government.
Well, it doesn't occur to people that the government they have meets those criteria, they think instead of the more local government.
Okay, and finally we have this point that although the powers that were at times exercised by this Congress were substantial,
nevertheless the states did not always just sit back and accept them.
So for example, the Congress for a long time wanted the power to lay an embargo,
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 Sovereigntys, so in the Treaty of Alliance with France, 1778, we are told that an alliance has been struck between, on the one hand, the most Christian king, and on the other hand, the United States of America, two or three of them.
New Wit, New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, so on and so forth,
and all of them are mentioned by name.
We see the same formula used in a treaty of amity and commerce with the states general
of the United Netherlands in early 1780s and another treaty with Sweden.
Now it's true that you can see in another treaty with the Netherlands, 1782, concerning
and Recaptured Vessels, you can see the term, instead of reciting all the states, the term
the United States of America as the style that they're using. And in some other treaties
you can see that. But in effect these two were considered to be equivalent ways of speaking,
that the United States of America are Massachusetts, New Hampshire, Connecticut, Rhode Island, etc.
Now of course when the treaty is established with Great Britain establishing American independence,
His Britannic Majesty acknowledges the said United States to wit New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, all the way down, all of them, to be free, sovereign and independent states that he treats with them as such.
Well, whatever the case may be in terms of the relation of the states to that Second Continental Congress that then stays in power,
The fact is that once 1781 comes along and the Articles of Confederation are drafted,
there's no question about the status of the states there because right in the Articles of Confederation expressly says
that each state retains its sovereignty, freedom and independence and every power, jurisdiction and right which is not by this confederation
expressly delegated to the United States in Congress assembled.
So there it is, okay, so there it is, that the sovereignty of the states is absolutely acknowledged in that document.
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, which strongly indicates that it's something they must have been possessing all this time because they retain it under this document.
So that's sort of an overview of how Upshur looks at the status of the colonies during the colonial period
and the sort of government that's established, first and second Continental Congress, and then Articles and Federation.
What he sees are a multiplicity of jurisdictions that are in no way amalgamated in a way that could make them legitimately considered to be one people.
A figure that is of some importance but doesn't get much mentioned any longer, and yet he has something rather interesting to say on this, is Orestes Brownson.
I don't know how many people know who Orestes Brownson is. I don't have the copy of his book right here.
Orestes Brownson was probably the best-known Catholic convert in the United States in the 19th century.
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.
He's sometimes been compared to Newman. Newman admired him and spoke very well of him,
Brownson, being the way he was, constantly denounced Newman all the time, so unfortunately it was not mutual.
But Brownson published something called Brownson's Quarterly Review for a long time.
His thinking, he's one of these guys who starts off sort of as a transcendentalist,
and then he becomes a traditional Catholic, arguing that the Pope has the right to depose secular rulers.
I mean, he goes from one extreme to the other, then he takes that back.
He's sort of a little bit of a wanderer, ideologically, but there's been a lot of books written on him.
Arthur Schlesinger, if Arthur Schlesinger likes him, he's got to be great.
You've got to drop everything and read him.
But Schlesinger says that some of the most interesting political thought was taking place in articles in Brownson's quarterly review.
Well, toward the end of his life, around 1875, he wrote a book called The American Republic.
Do not buy this book. I wrote the introduction to an edition that came out two years ago, and I'm actually telling you not to buy it.
I like my introduction. No, that's not true. You should rush out and get it immediately.
You should rush out and get it. I don't want that getting back to the publisher that I'm discouraging sales.
I mean, it's a fine book. It's just a frustrating book, really, I find. It's a frustrating book.
And so I had to write the introduction for this new edition that came out a couple of years ago.
And what I found is this about Brownson, and it says a lot about, I think, the nationalist theory of the Union.
When I mentioned the Liberty Fund conference that I went to, and that people who supported Webster
and argued that the United States was a single whole with a single aggregated people,
and they said that, okay, maybe the history doesn't lean this way, but it seems so much more poetic and pleasant.
Well, in a way, that's the attack that Brownson is largely going to take.
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?
Doesn't that seem to suggest that it is a single whole, it is a single aggregated people?
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 and so we should be nationalists.
But the point is that originally it didn't say that. Originally it 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, I don't know, 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, the people of Georgia, not a single people.
And I mean, if it had been meant in that manner, then certainly there would have been an enormous debate over this.
I mean, if you're going to fundamentally change the whole nature of American life, people are going to debate that, and there was no debate over that.
Anyway, Brownson came to this position in the mid-19th century that divine providence has ordained a certain kind of political form for the United States.
And he came to this conclusion that divine providence has ordained a kind of political life for every country in the world.
And that it is the job of the statesman to using his reason and in effect throwing himself into and immersing himself in the history of his people
to sort of divine what that tradition is and then perfect it and defend it.
So every people has this separate divinely ordained type of government for them and every
one is not the same.
So the American system works for the United States but it's not something that you would
want to export everywhere.
Everybody every people suitable to its own circumstances and temperament has its own divinely
ordained unwritten constitution as it were.
Well, Brownson takes this position. I mean, you can sort of see almost even more conservative than Edmund Burke, really.
I mean, almost like Joseph de Mestre, like very conservative position, because once you figure out what that divinely ordained unwritten constitution is, then that's it.
Okay, there ain't no change in it, because then you're obviously interfering with divine providence.
So, what does Brownson choose as the divinely ordained mode of government for the United States?
He says, this nationalist position, where the United States is a single indestructible hole,
this is the way divine providence intended it.
And then he's going to go and try and defend that position.
Well, if divine providence intends it this way, then naturally secession would be considered like the height of blasphemy.
But this is going to be the position that Brownson puts forth in great detail in his book, The American Republic.
So he suggests that the idea of the United States as a single people, instead of as a collection of sovereignties,
formed the backbone of this unwritten divine constitution.
And he argued that the American colonies had amounted to a single people,
although he says they only became a single people when they broke with Britain.
Then all of a sudden they became a single people.
and that none of the original thirteen colonies or of the states they eventually became,
none of them had ever possessed on their own the full attributes of sovereignty.
And for Brownson, he thought there was still further confirmation of his view that divine providence wants the country to be a single indivisible whole,
was the fact that attempts to establish the opposite didn't work.
The southern states tried to show that the country was divisible, but what happened to them?
They were defeated. That's divine providence, showing that that's not how it's supposed to work.
I can't believe I'm even saying these things, but that's Brownson's position.
As I say, he's a super serious and important intellectual.
Well, I think he's going to have a problem.
Well, he's dead, so he doesn't have to worry about this anymore.
But anybody who's going to pursue this line of thought is going to have a problem applying it to the United States because, all right, you could at least, you know, in the case of France, for instance, you might be able to make a plausible argument that if you're going to take Brownson's view and there's a certain type of traditional type order that France has assigned to it by divine providence, you could say that the French revolutionaries certainly broke with a long-standing tradition. They subjected monarchical France to a
ceaseless innovation and novelty and made fruitless and repeated attempts throughout the 1790s to impose new constitutions.
But the American case is much more difficult. It's much more difficult to ascertain what precisely would have constituted a revolutionary break with tradition
to be condemned by Brownson, other than the establishment of a monarchy or a hereditary aristocracy.
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 U.S. a single whole or a collection of states?
And on the other side you can find super smart people, Jefferson, Calhoun, Upshur, take the other view.
Now, if Divine Providence has established a single system for the U.S.
then presumably, men of goodwill would be able to apprehend what that system is.
Why would you have brilliant minds on both sides of this
If statesmen are expected to build upon the unwritten constitution given to them by Providence,
it just seems strange that so fundamental an issue would be the source of so much controversy.
You would expect the contours of this providential constitution to be obvious to men of intelligence and goodwill.
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.
Well, why would it be so widespread if it's the opposite of what Divine Providence wants?
Then, Brownson cites John Quincy Adams as someone who had argued that, quote,
Americans were always one people and the states hold from the union, not the union from the states.
Thomas says, you see, look, there's John Quincy Adams holding up divine providence for us.
Well, the problem with that is that I can find another quotation from John Quincy Adams.
This is the opposite. Not only did Adams argue in 1843 that the acquisition of Texas would justify dissolving the Union,
but we also have this in commemoration of the Constitution's 50-year Jubilee.
Here's John Quincy Adams. He says,
If the day should ever come, may heaven avert it, when the affections of the people of these states shall be alienated from each other, when the fraternal spirit shall give way to cold indifference, or collision of interests shall fester into hatred, the bands of political associations will not long hold together, parties no longer attracted by the magnetism of conciliated interests and kindly sympathies, and far better will it be for the people of the disunited states to part in friendship rather than in hatred.
from each other than to be held together by constraint.
So the chief problem with Brownson's point seems to be that here's even a guy he supports
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
and I describe one of these as the providentially established one.
Brownson also deals with an objection that Upshur raised. I don't think he realized that Upshur raised it.
Upshur asked to the nationalist folks, what would have happened if you had a...
what would have happened if some state had chosen not to ratify the Constitution
and had just stayed out of the Union.
What relationship would the Federal Union have had with that state?
If it were really one people all the time,
then how could that state have an existence apart from the Federal Union?
What would the relationship have been?
And so, and Upsher had wondered that and he said, you know,
obviously if one state had refused to ratify the Constitution,
then it would have been an independent state
and we would have had absolutely no authority to coerce it.
follows absolutely logically from the compact theory, not to brown some.
He says that if one of the states had not ratified the Constitution,
then it should be treated as a U.S. territory.
I mean, it wouldn't be a full-fledged state of the Union,
but it would be treated as a territory.
He says, if nine states had ratified the Constitution
and the other four had stood out and refused to do it,
which was within their competency,
they would not have been independent sovereign states outside of the Union,
but territories under the Union.
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 coeval,
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.
Brownson believed the American people were one,
so a state that had refused to ratify the Constitution would not, by that omission,
have separated itself from the political order to which he believes it is inextricably bound.
It would rather have become a territory of the United States.
And given that Providence, according to him, has established the American people as an indivisible whole,
no other answer appears to be available to him.
Well, Upshur has an even greater difficulty to raise.
He says, what would have happened if one of the colonies had refused to agree to the Declaration of Independence
Upshaw asks, could the other colonies have rightfully compelled it to unite with them in their revolutionary purposes on the ground that, hey, you're part and parcel of one people, right, so you have no right not to declare independence, we're all one people, so you are going to fight against Britain with us, and Upshaw takes the position that, no, to the contrary, the recusant colony would have possessed a status during the conflict no different from that of Canada. Having declared war,
For the other colonies may well have considered the people of this colony of loyalists to be their enemies,
but they would have had no right to treat them as traitors.
To what purpose then, inquired Upsher, were the people of the colonies one people?
If, in a case so important to the common welfare, there was no right in all the people together
to coerce the members of their own community to the performance of a common duty?
There goes the theory of the one people.
If you're in this situation and you have absolutely no right in any way to coerce a fellow colony that refuses to fight against Britain,
then in what way can you be called one people?
Well, anyway, so that in effect, that's sort of an overview of that's the way,
that gives you at least a flavor of how Upshur as really a spokesman for this Virginia-inspired tradition
would have looked at American history to defend the compact version of the Union.
And this is the type of argumentation that can be used later on when Lincoln gives the Gettysburg Address
and really puts forth the nationalist view in that short and succinct treatment.
This is the type of argumentation you could refer to to say that Lincoln is simply wrong to say
that there was one nation brought forth in 1776.
There's nothing about any of that history that would indicate that.
Instead, you have 13 separate sovereignties.
Given that the title of this talk is,
States' Rights in Theory and Practice,
I think that's enough theory to last a good long time.
But now we get to the fun part,
because here's stuff that you don't hear covered much
when dealing with states' rights questions,
because there's this desire,
I admire 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, whatever, murder, whatever.
And no rational person would support it, no good-hearted person, everybody should favor federal supremacy, all that.
The only time you hear states' rights mentioned is the Southern states wanting to protect slavery.
And incidentally, the southern states were perfectly willing to use the federal government to protect slavery time and time again, so let's spare that in mind.
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.
And I'm not going to go into the standard stuff that you could read about, for example, because you should just read about it in Tom DiLorenzo's book and then I can talk about other things.
Tom DiLorenzo has a book on Lincoln, as you all know, the real Lincoln.
Robert Lincoln has got a chapter on secession that's very good that talks about the fact that the New England states several times threatened secession.
They threatened it over the Louisiana Purchase. You hear a little bit them threatening, not a lot of people listen to them, but they threatened, some of them at least threatened secession over the embargo that was imposed under Jefferson that we're going to talk about.
There was at least an implicit, at least an implied threat of secession at the Hartford Convention toward the end of the War of 1812.
You get this, okay, and that indicates that you've got northern states that do believe in the rights of the states, that in practice they believe in the compact theory, if they believe they have the right to withdraw.
But instead I want to look at some issues that I think are perhaps less well known.
I want to look at what was happening starting in late 1807 to early 1809 with this embargo that Thomas Jefferson imposed because, as I say, here is a totally lost aspect of American history.
People know about the embargo, but not some of this other stuff, I think.
What's going on here, as many of you doubtless know, is that given that for years now, on and off,
Britain and France have been at war with each other and their allies,
and that means that, given obviously the tremendous naval presence that the British have,
that if you are engaged as a neutral in trading with either of these sides,
you are going to involve yourself in some kind of peril.
Because if you trade with one side, the other one is going to try to confiscate your ship and vice versa.
But the American position was that since we're neutral in these wars, we have the absolute right to trade, you know,
non-contraband items with belligerence or with anyone we like.
Well, those neutral rights were, to say the least, not being respected.
So Thomas Jefferson came to the conclusion that he did not want to go to war, if it could be avoided, with Britain,
So 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.
But the embargo is not going to be an embargo just on Britain and France.
It's an embargo that's going to forbid any American ship from leaving for any foreign
port anywhere in the world.
And in case you're wondering why would it be so broad, I mean, first of all, the reason
he's doing this is to punish Britain and France.
The thinking is, they need American commerce for their prosperity, and if we cut it off,
then it's going to bring them to heel.
And Jefferson said, you know, the beautiful thing is that they'll ask us, hey, what can
we do to restore commerce with the U.S.?
What do you want us to do?
And they're going to find out that all we're asking is for them to treat us fairly.
So he was going to, so he called this peaceable coercion, peaceable coercion, use economic
means to try to bring these folks to heel.
Now at first there wasn't a huge amount of opposition to this, because for one thing it's December 1807, most of the ports are frozen, you can't be shipping much anyway, 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, the New England states are obviously displeased by this, because many of them make their livelihoods in one way or another in trade or related fields such as that, and this is destroying their livelihoods, absolutely destroying and ruining them.
Now, given that Americans were great smugglers from the colonial period to then, they were classic smugglers,
some estimates have it that as much as half of American trade, nevertheless, persisted, thanks to smugglers.
But still, it was a tremendous disability and the New Englanders were very upset about it.
It may seem that they're being unreasonable because, after all, isn't Jefferson imposing the embargo really for them?
I mean, he's trying to vindicate the rights of American neutrals on the high seas, so what's the problem?
Well, the problem is that American ships could at least, they could take out insurance against possible capture or harassment by the British or French,
and they could more or less live with it while they had to.
But this was absolutely shutting everything down and ruining them.
Well, Jefferson is one of these people who used to save everything, you know, never threw anything away, all right?
We all know people like this, never throw anything away.
Well, Jefferson saved the letters people wrote to him.
In fact, there's one historian who's collected the various letters that came in to Thomas Jefferson and published them as a book.
And he would get letters asking, you know, can you find me a job somewhere?
Maybe I could work in a customs house or whatever, or even saying, you know, maybe you could lend me a couple of bucks.
I'm kind of short.
And the funny thing is, Jefferson would sometimes put money in an envelope and mail it back to the person.
And he generally, as long as you weren't just abusing him, like Thomas Jefferson, you're a big jackass.
As long as you weren't saying that, he would more or less try to answer you.
But he saved them, saved all the letters.
I mean, as late as the 1920s, Warren Harding used to answer the front door of the White House.
It's like a totally different world here.
Well, anyway, I don't know what condition he was in when he opened the door, of course, but anyway.
So Thomas Jefferson saved all these letters.
Well, the letters he gets during the embargo are pretty bad.
For example, Jefferson is getting this letter.
Mr. President, if you know what is good for your future welfare,
you will take off the embargo.
Another one. Look at the situation in the country when you took the chair
and look at it now. I should think it would make you sink with despair
and hide yourself in the mountains.
And then he says, another person says,
Take off the embargo, be ashamed of yourself and never show your head in public company again.
My gosh, I'd love to say to some president, never show your head in public company again.
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.
I mean, that's one thing that the government is actually very efficient at.
I mean, today, you'd be halfway through that first sentence and you'd be in jail, basically.
All right, so, that's the kind of frustration that you have in New England at that time.
And as I said, you even begin to hear at least some talk of secession.
Now, what's interesting about this embargo, first of all, is that sometimes we have this image of Jeff...
I mean, certainly this is, no question, Jefferson's low point is enforcing this embargo.
Robert Gallatin was the person who mainly enforced the embargo was Albert Gallatin, the Secretary of the Treasury.
And the irony of that is that Gallatin had been arguing for months against the idea of an embargo.
It's a stupid idea, it's terrible, it's obviously not going to change the behavior of the government.
It's not going to change the behavior of the government.
It's a stupid idea. It's terrible. It's obviously not going to change the behavior of those who are harassing us.
And it didn't. All it did was alienate New England entirely and destroy New England commerce.
That's all it did. It had none of the desired effects.
So Gallatin was totally vindicated. He's the one put in charge of enforcing the embargo.
And Jefferson really doesn't want to be involved in the day-to-day activity of it.
So, there's a letter from Jefferson at one point where he's saying that he's just not feeling well.
He says, I've got like one hour a day where I feel okay.
And during that hour I'm too busy to think about this embargo.
He's complaining of headaches.
So we've got letter after letter of him saying to Gallatin,
I trust you, you take care of this, you keep an eye on it, whatever, over and over again.
And whenever Gallatin would try to go up to him and say,
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's kind of falling apart over here, maybe you might give us some advice as to how to...
So, I mean, poor Jefferson, right? This isn't his sort of thing.
Well, the obnoxious aspect of the embargo wasn't simply that it cut off international trade,
but it was that you could have your ship seized, confiscated by the government,
on the mere suspicion that you were intending to violate the embargo.
Now, mere suspicion is not exactly probable cause, and so this was liable to tremendous abuse.
The Federal District Court in 1808 ruled that the embargo was constitutional.
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.
And it was a case that was initiated by the federal government.
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, 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, it does not give it the power to annihilate foreign commerce, so the embargo, according to the defense, was unconstitutional, but the court rejected this.
and instead began going down the path of taking the commerce clause and interpreting it very broadly
and began arguing that, quote, the great impending peril of the times,
by which they meant British and French assaults on American commerce,
meant that the commerce clause, quote, must take a still more expanded range.
So the embargo is constitutional.
What's significant here is that even though a federal court ruled the embargo constitutional,
the New England states did not consider that to be the end of the story.
Oh, a federal court has ruled, let's all bow down and wave incense before it.
They didn't say that.
To the contrary, they continued pressing the point.
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.
Did the fact that a federal court had found the embargo to be constitutional, did that
settle the matter?
I mean, are we all done arguing?
Absolutely not, said the Massachusetts Senate.
They said, if 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
Well, both houses of the Massachusetts Legislature describe the embargo acts as being, quote,
might not be inflicted on the prostrate liberties of our country.
If such a doctrine were true, our Constitution would be nothing but a name,
nay worse, a fatal instrument to sanctify oppression
and legalize the tyranny which inflicts it.
Well, both houses of the Massachusetts legislature describe the Embargo Acts
as being, quote, in many particulars, unjust,
oppressive and unconstitutional. And they said,
While this state maintains its sovereignty and independence,
all the citizens can find protection against outrage and injustice
in the strong arm of the state government.
And the embargo, they said, was, quote,
not legally binding on the citizens of this state.
And although Massachusetts, at no time did they say,
we have to just obey this law and deal with it,
what they did say was, quote,
All parties aggrieved by the operation of this act should abstain from forcible resistance.
But in effect, they're more or less saying, just try to ignore it the best you can.
Interestingly, during this crisis, a New York congressman who expressly called into the discussion
The Virginia and Kentucky resolutions of 1798 said,
Why should not Massachusetts take the same stand when she thinks herself about to be destroyed?
So there's a reference there to the principles of 98.
Again, an idea that has just disappeared, there it is.
A Connecticut congressman said,
If any state legislature had believed the act to be unconstitutional,
would it not have been their duty not to comply?
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.
The Connecticut governor spoke this way,
Well, there's Madisonian interposition.
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.
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.
And, quoting just one more time from Connecticut, we have this statement.
Resolved, that to preserve the Union and support the Constitution of the United States,
it becomes the duty of the legislatures of the states, in such a crisis of affairs,
vigilantly to watch over and vigorously to maintain the powers not delegated to the United States,
but reserved to the states respectively or to the people.
and that a due regard to this duty will not permit this assembly to assist or concur in giving effect to the aforesaid unconstitutional act passed to enforce the embargo.
And finally Rhode Island, when the embargo was at its conclusion, declared that the legislature of Rhode Island had the duty, quote,
To interpose for the purpose of protecting the people of Rhode Island from the ruinous inflictions of usurped and unconstitutional power."
Again, to interpose. There is the language of the principles of 1798.
Now, I've been, for a number of years now, I've been teaching American history having to use a textbook.
There is no textbook that I know of, now I'm happy to be corrected,
This is an ongoing idea. It's not just something that Jefferson and Madison thought of, and then everybody was embarrassed by it. Nobody talked about it anymore.
Even the very section of the country that had been most vocal in their opposition to it, ten years later, is now saying,
Hey, Virginia and Kentucky resolutions. Hey, all the cool kids are interested in the Virginia and Kentucky resolutions all of a sudden.
What a wonderful and glorious thing.
Well, there's much more to be said in the future, which we'll be doing tomorrow, like things involving disputes in the War of 1812 and Daniel Webster's beautiful speech about why conscription is incompatible with liberty and all this, and the National Bank and how they try to stop it.
Just glorious examples of the states. And I mean, they're still states, after all. We can't get that excited about them.
But the fact that they stand up and get right in the face of the big federal behemoth is such a glorious thing to see when today they're absolutely demoralized and ground down, they don't dare to say anything, they don't dare to resist and they don't want their highway money taken away or whatever.
You know, it reminds you that there used to be people who were courageous and politically creative rather than simply referring every single matter to be decided by Washington D.C.
Well, having said that, I will take any comments on this, or questions, I'll happily take them.
Okay, I have one, two, and then three.
I have a question. You were talking about Joseph Story and talking about the various states of the United States and the United Kingdom, and that's an argument against Joseph Story's nationalism.
I was thinking that it just resembles NATO or something like that, some alliance that has military command, but it's just comprised of opposition armies and all that sort of thing.
I don't think that NATO is a country.
is with a country, but nevertheless is an alliance that serves certain purposes in a corporate way,
but then at the same time consists of smaller independent militaries,
and so I think that is an apt comparison. And did you have a question?
Maybe more of an anthropological question, I guess, but it seems like it cuts on politics and history,
of whether or not there's such a thing as a nation, like an American nation,
that there are any kind of nation, a German nation, that exists outside of the political order of the time.
So if you only have 13 states or something like that, and we don't have a United States at that point,
or there is no American nation, then can you still say there is an American nation just based on the culture of it coming?
...extrapolation from cultural commonalities not be drawn.
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,
so in effect in some mystical way we are in fact one people.
I mean, in a certain sense, I may feel a kinship with people who share these different qualities of mine,
According to the Nationalists, why did the Founders even bother with the Constitution,
The Constitution or the Articles of Confederation, why not just, I mean, shouldn't they just have been able, on the nationalist account, just, you know, by the fiat of the Congress or whatever, create the kind of government they wanted?
Why did they, did they have an explanation for why it was necessary to have these conditions?
Yeah, I mean, I think, because that is an argument that's raised against them actually. That's an argument that Upshaw raises.
The question being, if the nationalists believe that there is one people all this time,
then really what's the point of drafting the Articles of Confederation or the Constitution,
and then having it ratified, whatever, 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, could they just have imposed something?
Why would they have to go through all these awkward channels?
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.
And so, at the very least, you would want the people
to be able to debate it and discuss it
so that they can feel like it's not something wholly alien to them
and it's not something that was imposed without their input.
And, you know, this would make it function more smoothly
If they felt that it was something, you know, that emerged in some way from their own will.
But I wonder if some of the more extreme ones might secretly say that, you know, that's really the only, you know,
it's just to give people a sense of belonging.
I mean, have them debating things and discussing and becoming politically aware.
But I don't know what real, I mean, if they're really going to take this thing totally seriously,
that there's already one people there, it does seem to lead to what you're saying.
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. What, certainly that could have been...
Well, it's the president's discretion as to how, you know, I mean, there would be specific types of hard cases that would be involved.
There would be some people who were just so financially burdened by it that Gallatin would say, well, can't you make an executive exception for such and such?
So, I mean, it was open to being micromanaged by the executive, but basically it is, you know, it is congressionally authorized, but it leaves a tremendous discretion to the executive to deal with individual cases.
And the comment was only there was 14 colonies that remained loyal. It's the smallest colony and didn't participate. That of course is the colony of West Florida. It had a royal governor and was governed exactly the same way.
and so and so nobody went into West Florida and and tarred and feathered
anybody right so because so right right well I'd love to talk about is is are
there hurricanes like everywhere in Florida are there parts that you could be
safe there any parts you can be safe in Florida because we've actually thought
We thought about moving there and, oh no, Lawrence Vance is from Pensacola and he's shaking his head.
So we're not really talking about the Bonnie Blue Flag, right?
Well, I mean, I know the song, but...
No, West Florida, the Bonnie Blue Flag.
Oh, the West Florida, right. No, I'm thinking of For Southern Rights Hurrah.
Here I am going on the record singing that. There goes my career.
Other thoughts, comments, or whatever? Yes?
I actually have a second question. Did the federal government have any sort of agency that they had to enforce this, you know, like a, I mean, yeah, I guess like a custom or police agency or do they just rely entirely on the states to enforce it?
You know what, I'd have to look into that because it's an excellent question and I don't want to say something that might actually just be me speculating. So, I mean, I'm sure I can find this out in, you know, in no time.
You sort of alluded to this in your remark, that after all these are just states' lessons, 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? It's all based on illegitimate things anyway. Is there an adequate answer to give to that?
The answer I gave is that given that, you know, most of the world is not coming at life from this perspective, it, you know, it does buttress.
I mean, I think, you know, if your particular historical tradition, you know, in some ways does buttress a pro-liberty position,
then you should make it another of the arguments in your arsenal, because some arguments appeal to some people, some arguments appeal to others.
I mean, it's like if you're trying to, if you're a missionary and you're trying to convert somebody to, let's say, Christianity,
I mean, some arguments work with some people, some don't, I mean, emotional arguments work with some people, like,
look at how beautiful Christ's life was and people get weepy and they love that.
Other people say, but look at how logical it is, like Saint Anselm would say, it makes perfect sense that God should have become man,
and that works for other people, you know, so I feel like whatever argument works, you know, should work.
should work. But I guess my point would just simply be, all I want to say to my fellow Americans basically is that you don't have to sit, you don't have to sit, you know, in this supine, abject, you know, pathetic way and sit here and accept all these, you know, federal mandates and incursions in your life when we have, you know, states that, you know, states are, institutionally they're more powerful than just scattered individuals that have resisted in the past.
In the past, given that the states exist, they are institutional mechanisms that exist and they can be used, as we've seen, to keep the federal government in check, then anything that can be used to keep the federal government in check, I favor using.
Then, of course, we have to keep that thing in check, and believe me, we've got to keep an eye on the state government too, but it seems to me that this is another angle that we could legitimately take.
I mean, I think, I mean, I know that Rothbard himself typically, you know, was a localist, you know, I mean, like he would, he believed in natural rights, but he believed in the local enforcement of those rights, just simply on a, as a practical matter, because, you know, it would be, as I'm going to say tomorrow, if the mafia is giving you a problem, as Stefan Kinsella would say, it's not necessarily the best idea to go say, well, I'll go get a much bigger mafia to protect me from the smaller mafia. I mean, in the short run, that might seem wise,
I was fascinated by the Ludwig von retreat in poetry.
I'm wondering, when you hold somebody's feet to the coals on this constitutional issue, what sort of retreat do you find?
to a critique of my treatment of nullification that was written by one of the people associated with the Claremont Institute.
People, let's come on now, let's be nice.
And you can sort of see the types of arguments that they make.
Because they'll quote things that Madison did say.
But the fact is, I have an all-purpose Madison for any occasion, and that doesn't settle anything.
If we're just going to sit here and appeal to authority, when that authority contradicts himself, frankly, I think that can be shown. That's not helpful.
I think it's more of an emotional thing that secession and nullification just seem chaotic to people, or they are out of the mainstream.
You know, so there's this thinking that, well, if only we could just...
I think the Claremont people think that if only we could just enforce the Constitution
and we could get people who believe in natural rights to be elected,
then that would be the way of dealing with it.
And I don't remember the name of the program,
but I was on one of these sort of right-wingy radio shows a few months ago,
and the whole thing ended up being this big, long argument about,
do the states have a right to secede?
And I absolutely insisted they did.
And I said, look, you don't even have to want to secede to at least believe that they have a right to secede
and that it can be a useful constraining force against the Federal Government.
This guy said, well, that's just crazy, I could never believe that.
And I said, well, what strategy do you propose for, you're going to have this Federal Government, how do you want to restrain it?
And I kid you not, he said, well, you know, we just need to vote for good people.
And so, since it was his show, and I felt like, you know, he's nice enough to have me on as a guest,
I'm not going to be a wise guy or a jerk, but what I wanted to say was,
how's that strategy been working out for you? Has that been working okay?
Doesn't that answer itself? This hasn't worked, so let's keep trying it,
and then see what happens. Or you're crazy to bring up nullification.
When everything you've tried has not only not worked,
but the situation has gotten worse exponentially,
Maybe it's time to, you know, think of what other, what other things do we have in the American arsenal that we can pull out and use. That's my attitude.
Okay. One and then two. Oh, yes, sir, you're the one.
I'd just comment that something you said there reminded me that in the bicentennial up in Boston they were reenacting some things.
They had all the colonial costumes and all like that.
In the middle of the celebration, only the primers of the event knew this was going to happen.
There was a big low-water explosion and smoke, and then when they spoke, of course, people scattered away from the dance floor.
And when they spoke clear, there's a sudden message. King George III, he says,
How do you like taxation with representation?
Yeah, I know it. I know it. And I mean, that unfortunate phrase of no taxation without representation, you know, that it means that a lot of school kids think, you know, well, everything's fine today, then, you know, because we have, we have representation. So I'm handing over half my income. That's what we fought for, baby, you know, I wanted to give my consent to hand over half my income. Now we're fine. Oh, I know. That's why I always portray it as a, as a question
The question of self-government. That's the way that taxation without representation, it was a subset of self-government.
The colonies were arguing that they alone have the right to legislate for their own domestic affairs, including taxation.
That was just one point, because otherwise, no taxation without representation gives them the totally wrong understanding of everything.
Because then they totally don't understand the Whiskey Rebellion, 1794, when people refused to pay or rose up against tax collectors.
I was wondering, in your opinion, what's the basis for the greater likelihood of abuse by a higher order of government. Is it because it's physically farther, because it's a bigger government, or because it's voting governments? What's the explanation for that?
How can you provide a higher level of governance when it might be a peaceful one?
If things are much worse than living in the US, which I like doing, I don't want to have to do that, then it's not as much of a constraint on them.
My own theory, now this is not necessarily correct, but my own theory is that, although it's true, a lot of people use the state government as stepping stones so they could someday work in the federal government.
But I sometimes think that if you're a really crazed ideologue, you want to be a congressman, a senator or the president.
You don't want to be the district attorney for, you know, New Jersey or something.
Well, I don't know, New Jersey would be better, but like Arkansas, you just wouldn't want to.
You never would. By the way, I love Arkansas, a wonderful place, but you'd want to go for that.
So, I mean, I think there are ideologues shot through government because of the very nature of it.
But I think the real ideologues who want to run everybody's lives and force everybody into the same mold that Frederic Bastiat describes in the law, like everybody wants to...
Rousseau and everybody, they all want to make us into one mold. You know, Arkansas is just small peanuts for them.
They don't want to just sit on the school board, even though there are annoying people on your school board too.
They want the whole thing. They want to run the whole thing.
I didn't go to the John F. Kennedy School of Government
so that I could be the treasurer of the state of Delaware.
I think that the ones who are the most crazed
tend to want the most power.
I find that the more local the government is,
it's still obnoxious and you can't deal with them,
but you're more likely, I think, to meet a normal human being
who's just got a dopey job,
Whereas it's very hard to find anything but sheer evil and malice to me in Washington, D.C.
This is just more of an anecdotal point on my part.
So I think the worst ideologues tend to go right to the top where they can impose things on everybody else.
Okay, well I think that's about it. So, thanks again.