“States’ Rights Apogee, 1776-1840” By Ryan M. Setliff A Thesis Submitted To The Faculty of the History Department and Graduate School At Liberty University In Partial Fulfillment of the Requirements for a Masters of Arts in History December 2011 – Abstract – America’s states’ rights tradition has held much influence since the ratification of the U.S. Constitution in 1788. In late 1798, in response to the Federalist administration’s adoption of the Alien and Sedition Acts, the Virginia and Kentucky Resolutions were formally adopted by the legislatures of Virginia and Kentucky respectively. These resolutions set a lasting precedent for state interposition and nullification. As well concurrence with these doctrines can be found in the Virginia Resolves of 1790, the constitutional debates of 1787-1790, and all throughout the colonial-revolutionary period of the 1760s to 1780s. In time, the Virginia and Kentucky Resolutions would gain stature and would define the American political culture of the nineteenth century. They became known as the Principles of 1798. The Tariff Crisis of 1828-1832 in South Carolina may be contextualized in light of the Principles of 1798. This inquiry endeavors to answer why those principles are integral to the American constitutional tradition. The continuity of the 1798 resolves with colonial-revolutionary practice reveals them as neither rash nor innovative, but in accord with the localism innate to American political tradition. -ii- – Acknowledgments – Special thanks to my thesis committee participants for their mentorship. In particular, my thesis advisor Dr. Samuel C. Smith, Professor of History, and committee reader, Dr. Roger Schultz, Professor of History and Dean of the School of Arts and Sciences, have my gratitude for their assistance and encouragement in this project. -iii- – Table of Contents – States' Rights Apogee, 1776-1840 ..................................................................................................1 Introduction......................................................................................................................................1 One – Antecedents..........................................................................................................................11 Two – The Principles of 1798 ........................................................................................................41 Three – The Northern States' Rights Tradition ..............................................................................60 Four – The Tariff Crisis and the Debate on the Union ..................................................................81 Conclusion ...................................................................................................................................114 Bibliography ................................................................................................................................119 Appendix .....................................................................................................................................129 Virginia Resolutions of 1798 .......................................................................................................129 Draft of the Kentucky Resolutions of 1798 .................................................................................131 Kentucky Resolutions of 1798 .....................................................................................................136 Kentucky Resolutions of 1799 .....................................................................................................141 Virginia Report of 1800 ...............................................................................................................143 © Ryan Setliff, 2011. All Rights Reserved. -iv- Setliff 1 Introduction “[C]onfidence is everywhere the parent of despotism—free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go… In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution . .” —Thomas Jefferson, Draft of the Kentucky Resolutions1 The Principles of 1798 The states‘ rights tradition reverberated through the political discourse following the adoption of the Constitution and was an outgrowth of the jealous solicitude for local rights and individual liberty embodied in the American Revolution. In late 1798, the Virginia and Kentucky Resolutions were written and formally adopted by the respective state legislatures in response to the Federalist administration‘s adoption of the Alien and Sedition Acts which they perceived as unconstitutional. These resolutions set a powerful precedent for state interposition and nullification. In time, they would gain stature and define the American political culture of the early nineteenth century—and would become known as the Principles of 1798. This inquiry endeavors to answer why those principles are integral to the American constitutional tradition. Foreshadowing state interposition, Senator William Maclay of Pennsylvania remarked in his journal for 22 March 1790: ―Is it to be expected that a federal law passed directly against the sense of a whole State will ever be executed in that State?‖2 The Tenth Amendment to the 1 Thomas Jefferson, Declaration and Protest of Virginia, 1825, The Writings of Thomas Jefferson, Memorial Edition, Andrew Lipscomb and Albert Ellergy Bergh, eds. (Washington, DC: Thomas Jefferson Mem. Assoc., 1905), 7:304. 2 Richard Weaver, ―The South and the American Union,‖ The Southern Essays of Richard Weaver (Indianapolis, IN: Liberty Press, 1987), 234; Texas v. White, 74 U.S. 700 (1869). Author‘s Note. What is a ‗State‘ in the American political parlance? Justice Salmon Chase offered this definition of state, ―A State, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written Constitution, and established by the consent of Setliff 2 Constitution manifests the integral role of the states vis-à-vis the limited federal role evident in a delegation of express powers.3 The powers conferred upon the federal government, under the Constitution, including those of Congress, are delegated by the people, enumerated in express terms in that instrument, and are limited in scope.4 The people delegate to the government only so much power as they think prudent to exercise while they reserve to themselves all the rights and powers that are not delegated to the government, whether federal or state. The preamble to the Constitution reads, ―We the people… do ordain and establish this Constitution…,‖ which declares that power resides with the people. ―All [federal] legislative Powers herein granted shall be vested in Congress….‖ This implies a limitation upon the federal power.5 As had been the case in the old Confederation, pursuant to its thirteenth article, all remaining authority belonged to the people, including the power to make and unmake government. All acts by the Congress, or any officer, beyond the limits of power delegated, were considered to be null and void ipso facto.6 To encapsulate this doctrine of delegation in the constitutional fabric, the Tenth Amendment was proposed and ratified in 1791. ―The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the governed.‖ 3 Frederick Drake and Lynn R. Nelson, eds., States’ Rights and American Federalism: A Documentary History (Westport, CT: Greenwood Press, 1999), 67-72. 4 Clarence Carson, The American Tradition (Irvington-on-Hudson, NY: Foundation for Economic Education, 1964), 73, 80-81; Wesley A. Riddle. The American Political Tradition (Irvington-on-Hudson, NY: Foundation for Economic Education, 1996), 17. 5 Russell Kirk,The American Cause (Wilmington, DE: ISI, 2002), 68; Roger Pilon, ―Madison‘s Constitutional Vision: The Legacy of Enumerated Powers,‖ James Madison and The Future of Limited Government (Washington, DC: Cato Institute, 2002), 29. ―The most basic limit on power, however, could not have been simpler in its conception. In fact, it can be reduced to a short admonition: if you want to limit power, don‘t give it in the first place. Notice that is not simply an instruction for limiting government. It is a principle of legitimacy. It draws from the Declaration‘s claim that government‘s just powers are derived from the consent of the governed. Powers are legitimate if and only if they have been delegated by the people and enumerated in the document through which the people constitute themselves as a political entity, their constitution. Thus, the doctrine of enumerated powers.‖ 6 John R. Graham, Free, Sovereign, and Independent States: The Intended Meaning of the American Constitution (Gretna, LA: Pelican Pub., 2009), 181. Setliff 3 the people.‖7 Jefferson inferred that the Tenth Amendment was the ―foundation‖ of the Constitution. ―The states supposed that by their tenth amendment, they had secured themselves against constructive powers,‖ he remarked. ―To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power,