What States Rights Really Mean
06. Jul, 2009 
74 Comments
by Thomas E. Woods, LewRockwell.com
“The several states composing the US. of America are not united on the principle of unlimited submission to their general government…”
–Thomas Jefferson in the Kentucky Resolutions of 1798
William J. Watkins, Jr., Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy (New York: Palgrave Macmillan, 2004).
Ask the typical undergraduate to discuss the ideas advanced in the Virginia and Kentucky Resolutions of 1798 and you may as well be asking for an overview of the Copenhagen interpretation of quantum physics. Yet these nearly forgotten documents fully merit a place among the most important political writings in American history, both in terms of the ideas they put forth and the influence they had on subsequent generations of American political thinkers. That’s why William Watkins’ book is something to celebrate.
The Resolutions in effect posed and sought to answer a series of fundamental questions. How is the central government to be restrained? Are frequent elections and internal checks and balances sufficient, or does the limitation of federal power require still more institutional safeguards? Which institution, if any, possesses the definitive word on constitutional disputes between the federal government and the states?
To the suggestion that the Supreme Court was the ultimate arbiter, the drafters of these documents had yet another question: how can the federal courts function as impartial umpires between the federal government and the states when they themselves are part of the federal government?
Watkins skillfully guides the reader through the context within which the Virginia and Kentucky Resolutions were drafted. The Alien and Sedition Acts of 1798, passed during the Quasi War with France, alarmed Thomas Jefferson, James Madison, and the Republican Party in general. The alien legislation, which authorized the president to deport resident aliens who had “treasonable” leanings, was a source of concern to Jefferson and other Republicans; Jefferson believed the legislation was aimed at Albert Gallatin, the important Pennsylvania Republican, who had been born in Geneva. (He later became Jefferson’s own treasury secretary.)
But it was the prohibition of seditious libel that concerned them most. For Jefferson, it wasn’t only that this prohibition would be enforced in a partisan way that made it objectionable – though of course it was, with Republican newspapers and spokesmen targeted for harassment, fines, and even jail time. (Watkins refers to correspondence between Jefferson and Madison at the time in which they express concern that someone might be tampering with their mail.) And it wasn’t that seditious libel could be arbitrarily or loosely defined – although, again, in practice it was: one poor soul, who expressed the fond wish that the presidential saluting cannon would “hit [President John] Adams in the ass,” was fined $100.
The primary issue was the acts’ dubious constitutionality. Jefferson based part of his objection on their violation of the First Amendment, but noted that they violated the Tenth Amendment as well. Nowhere had the states delegated any authority to the federal government to pass legislation pertaining to the freedom of speech or press. In doing so, then, the federal government had encroached on a state prerogative. For Jefferson, who spoke of binding men by the chains of the Constitution, immediate action was necessary lest such federal usurpations begin to multiply.
Was there a constitutional remedy – that is, a solution short of the extreme measures of secession or violent revolution? As far as Jefferson was concerned, there had to be. And that constitutional remedy, as so often in Jefferson’s political philosophy, involved the states. Given that the states were the constituent parts of the Union, and had enjoyed an independent existence long before the Constitution had come into effect, they had to have some measure of protection against the federal government.
Certainly the federal government could not be permitted to have the exclusive authority to make authoritative judgments about the Constitution, since the obvious long-term consequence would be the eventual concentration of power in the federal government as it consistently handed down rulings in favor of itself.
The states had to be able to make their own interpretations of the Constitution, to which they themselves had acceded, count for something. Even the centralizing Alexander Hamilton had envisioned a role for the states in restraining the federal government, arguing in Federalist #28 that “the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”
As far as Jefferson could see, the only way in which a state could both remain in the Union and retain its liberties in the face of an unconstitutional act on the part of the federal government was for the state to declare that by virtue of its being unconstitutional, the federal action was null and void and would not be enforced within the borders of that state. (He and others did indeed entertain and reply to the various objections to such an idea.)
An anonymous Jefferson (who was vice president at the time) penned what became known as the Kentucky Resolutions of 1798, which spelled out the objectionable aspects of the Alien and Sedition Acts as well as the states’ rightful response: nullification.
Madison penned similar resolutions that were approved by the Virginia legislature. Although Virginia and Kentucky found little support in other states for these ideas in 1798, with the passage of time all sections of the country would appeal at one time or another to what became known as the “Principles of ’98.”
You may have noticed that these ideas are rather out of fashion today on both left and right. Watkins, however, identifies these ideas as absolutely fundamental to American liberty and as legitimate means, faithful to the spirit of the Constitution, of preventing the expansion of the federal government.
Watkins could have strengthened still further his case that the Principles of ’98 merely vindicated older and settled doctrines about the nature of the federal Union by referring to some of the recent scholarship of Kevin Gutzman, a professor of history at Western Connecticut State University.1 Gutzman has shown, contrary to the contentions of Straussians, neoconservatives, and left-liberals alike, that nullification was not simply a doctrine that Jefferson and Madison contrived out of nowhere as an ad hoc response to the threat to civil liberties posed by the Alien and Sedition Acts.
To the contrary, the line of thought that culminated in the Resolutions of 1798 can be traced all the way back to the Virginia ratifying convention, where its central principles were laid out by prominent Virginia Federalists. (That’s right: Virginia Federalists set forth these doctrines.)
The context was as follows. At the Virginia ratifying convention, Patrick Henry expressed his fear that the “necessary and proper” clause of the Constitution (which said that the federal government would have all powers “necessary and proper” to carry into effect the powers granted in Article I, Section 
would inevitably be interpreted by the federal government as a boundless grant of power, transforming the limited government that supporters of the Constitution promised into an unlimited government that would menace the people’s liberties. He was likewise concerned about the “general welfare” clause, since government could justify practically any action it might take by some strained reference to the general welfare.
Edmund Randolph, the leading Federalist speaker at the convention, argued that Henry’s fears were unfounded. Those phrases could not have the expansive meaning that Henry attached to them because, Randolph explained, the only powers possessed by the federal government would be those expressly conceded to it by the states. “All rights are therein declared to be completely vested in the people, unless expressly given away,” he said. “Can there be a more pointed or positive reservation?”
Randolph belonged to a committee of five men whose task it was to draft the ratification instrument – that is, the statement by which Virginia would officially ratify the Constitution. George Nicholas, another member of the committee, told the convention that if Virginia assented to the Constitution it would do so on the basis of the clear and manifest meaning of that document.
If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification and intent, to be, what the words of the contract plainly and obviously denote; that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it, whensoever any such imposition shall be attempted – I ask whether in this case, these conditions on which he assented to it, would not be binding on the other twelve? In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them.
By the slimmest of margins the Virginia convention went on to ratify the Constitution, but on the terms of their instrument of ratification, whose exegesis they had heard from Randolph and Nicholas. They had announced to the people of the other states how they understood the document, and that Virginia should be exonerated from it should the new government stray from this understanding. They had acceded to a compact establishing a federal government that possessed only those powers expressly granted to it and no more.
Already in 1790 Virginia was expressing its displeasure with the direction of the federal government. Alexander Hamilton had proposed federal assumption of the state debts, in order to bind the wealthy more closely to the success of the new federal government. (In other words, the wealthy would have a vested interest in the success of the new government since if it failed, their bonds would be worthless.)
Patrick Henry introduced into the Virginia state legislature a resolution, approved by both houses, calling Hamilton’s plan “repugnant to the Constitution…as it goes to the exercise of a power not expressly granted to the General Government.”
As the decade progressed, John Taylor of Caroline kept up this posture of vigilance vis-à-vis the federal government. What is more, Taylor argued that the state legislatures had the authority and indeed the duty to enforce the original understanding of the Constitution, and to prevent the federal government from usurping the reserved powers of the states.
As Gutzman puts it, Taylor envisioned state legislatures acting “as Americans have now come to think it is normal for the United States Supreme Court to act.” Thus when Jefferson and Madison penned the Virginia and Kentucky Resolutions of 1798, they were not introducing any radically new doctrine but merely drawing out the logical conclusions of a vigorous intellectual tradition traceable to the Virginia ratifying convention.
And it is that intellectual tradition that this book describes and vindicates so effectively. Reclaiming the American Revolution is a relatively short book, but it contains scarcely a wasted word. In some ways, it is a miniature American history in itself, as Watkins takes us on a tour of the nation’s past through the lens of the Resolutions.
In the manner of James J. Kilpatrick’s unfortunately out-of-print classic, The Sovereign States, Watkins provides example after example of acts of state resistance to the federal government, recreating for us a time when the states were genuine actors in a constitutional drama. He likewise sketches the process by which political consolidation, the evil that the Jeffersonians sought above all else to avoid, triumphed over the Principles of ’98 in the decades following Reconstruction and during the twentieth century in particular.
As many readers of here well know, one important aspect of this process involved the Supreme Court’s increasingly expansive interpretation of the Constitution’s interstate commerce clause, such that practically everything came to be defined as “interstate commerce” and therefore subject to federal regulation. Reclaiming the American Revolution contains the best short discussion of the original intent of the commerce clause, and its subsequent perversion, that I have read. (He also discusses the clause’s relevance to such present-day controversies as medical marijuana and federal hate-crimes legislation.)
William Watkins has won the praise and admiration of a wide array of very fine scholars – Reclaiming the American Revolution carries some very high-powered academic endorsements – while nevertheless making clear his own sympathy for a political tradition that could hardly be less fashionable in academia (or, for that matter, in modern politics). It will take a lot more than good scholarly work to reverse the century and a half of political centralization through which the United States has passed, but in the meantime we can use excellent books like this one as a moral rebuke to those who, in defiance of American law and tradition, aid and abet the aggrandizement of the central state.
Watkins has done a superb job of reopening what the establishment considers closed questions. That, really, is what people in this orbit consistently seek to do: not to debate the minutiae of this or that policy proposal, but to raise and explore fundamental issues that the establishment would prefer not to discuss. That’s why we read here every day, and it is why the serious student of liberty needs to read this book.
- In particular, see Kevin R.C. Gutzman, “Edmund Randolph and Virginia Constitutionalism,” Review of Politics 66 (Summer 2004): 469–97; K.R. Constantine Gutzman, “The Virginia and Kentucky Resolutions Reconsidered: An Appeal to the ‘Real Laws’ of Our Country,” Journal of Southern History 66 (August 2000): 473–96.
Thomas E. Woods, Jr. [visit his website; send him mail] is a senior fellow at the Ludwig von Mises Institute. He is the author of nine books, including two New York Times bestsellers: Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse and The Politically Incorrect Guide to American History. Read Congressman Ron Paul’s foreword to Meltdown.
Copyright © 2005 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.
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Have just read the Oklahoma Sovereignty Act 1995 Concerning the issue of states withholding, or confiscating Federal taxes. It leaves quite a few unanswered questions.
What if the Feds decided to play the same game and withholds all SS payments, Fed retirement payments, Medicare, etc for any citizen living within the state that is engaged in withholding federal taxes.
Would the state be willing or capable to pick up these payments? If not, how would they deal with the anger and poverty of those denied said payments?
This is not as simple an issue as the advocates of this movement would have us believe.
Basically I do like the idea of states withholding Federal taxes, and would like to hear suggestions how this procedure could be implemented.
IT’S GOOD THAT BEFORE ANY ACTION IS TAKEN ALL THESE GOOD QUESTIONS KEEP ARISING.
Pete,
You raise a legitimate concern. This is one of the reasons that I personally think the current pace is the right pace. On the other hand, social security is all but dead anyway. Part of what the so-called “stimulus” package is supposed to do is to keep people working so that they can continue to pay federal income taxes and social security taxes. The social security taxes will, in turn, be paid out in benefit checks because no social security fund exists in the first place. But that’s all predicated on the idea that the stimulus thing will work, which it won’t.
So, in essence, it doesn’t matter what the response will be from the federal government. When you get down to brass tacks, it’s all going to come down to survival. And if the beneficiaries of social security don’t like the way a given state handles it, they can move themselves to another state.
A friend and I attended our local Tax Day TEA rally on April 15. We had a conversation with a gentleman concerning federal taxation. My friend mentioned the “Fair Tax” as an alternative to the current system. Our interlocutor responded in this fashion: “Well, I could never go along with something like that because I’m exempt from paying federal taxes, so why would I settle for something less?” The obvious answer is that our current system isn’t working, and has indeed bankrupted us. You can blame it on the pols if that makes you feel better about it, but that man’s attitude (and I’m afraid it’s a more prevalent attitude than many of us would like to believe) is simply that (a) I’m dissatisfied with the way things are working, but (b) any plan devised to solve the crisis which requires any bit of personal sacrifice on my part, I can’t go along with.
Just another government welfare case.
Pete,
I have been thinking about this as well,
Before a State ventures into the abyss of “federal withholding” States must pick and choose it’s battles carefully. This is uncharted territory, so withholding must be selected for the least amount of negative impact on it’s citizens, and yet have a high enough profile that Ordinary citizens will see immediate and personal results.. a great place to start would be the Federal gas tax. at 18.4 cents per gallon, every single hard working human will feel this. The impact of less road money that states recieve in the form of federal $$ to maintain it’s roads will have to be made up by increasing it’s own state tax.. But it wont be anywhere close to 18.4 per gallon
The first argument to come up would be that we are just exchanging one tax for another.. but this can be countered by explaining that while yes, we do need to boost our own fuel/ road or whatever tax, they can be voted on by the general population!.. bringing the element of CHOICE back to the people they may opt to put off the tax for a year or two or they may go ahead and agree that the tax needs to be implemented…either way, this empowers people, it brings the issue of what they pay at the pump (something that everyone has an opinion on anyway ) right to their mailbox.
The results of this is going to have some pretty serious implications..
Every Federal Mandate that is tied to road money will automatically be repealed, so States must be prepared to deal with things like Federal guidelines on drink driving convictions.
Helmet/seat belt laws
fuel type laws, ( purple diesel )
the list is HUGE
you cant give the feds the boot without having a plan in place to take up the slack…
Terry,
I think withholding of federal funds can be palatable for everyone if it is done correctly.
I think jumping into the social security quagmire, before learning the process would have negative results. Also, We dont want to thumb our noses at citizens, telling them if they dont like it they can move, we want Citizens to embrace the idea that the state is looking out for the rights of it’s citizens.
THE PRESENT OVERBURDENED BUREAUCRACY DID NOT EMERGE OVERNIGHT SO THE DISMANTLING OF IT WILL TAKE TIME IN THE FORM OF RESEARCH, PLUS AND MINUS OF MANY CHOICES ETC. THIS MAY BE A PANDORA’S BOX BUT LET’S OPEN IT AND DEAL WITH IT.
You know, this is making me think that we states are not fighting this battle on a level field. The feds break the rules, and we states are looking for ways to win, while playing within the rules.
Perhaps it would be a better strategy to break the rules as much as the feds do in order to have a fair fight.
Also, We dont want to thumb our noses at citizens, telling them if they dont like it they can move, we want Citizens to embrace the idea that the state is looking out for the rights of it’s citizens.
Larry, with respect…
Aren’t you more or less arguing the same position that our reverend friend was arguing a few days ago? I.e., giving a segment of the citizenry a payoff in exchange for their loyalty to our cause. Besides, what “rights” are you talking about — the right to receive social security benefits? Social Security was a gamble and an ill-bargain from the very gitgo. But no one wants to admit that. They just keep trying to figure out how to keep it soluble when that is an absolute impossibility at this point in the game. In point of fact, SS recipients aren’t just interested in ’saving’ social security, they continually want more and more. The buck’s going to stop somewhere out of pure necessity. I can’t help that. It’s just the way it is.
oh! parish the thought of me aligning with the good reverend!..lol
No, I was approaching this from the direction of a “this or that” scenario.
because this is such virgin ground, to me anyway, it makes sense not to alienate the blue hairs into running to the federal government for their refuge.. admittedly, I am arguing this from the political angle. Because our elderly make up such a large percentage of voters, I guess in a way I am saying cater to them, By not tackling the SS issue right out of the gate. but only because when it come to the ballot box, we would need their numbers. I think the Majority of the elderly are in favor for larger government, there would have to be some way of winning them over… this of coarse would depend on which State stepped up to the plate to try this.. I don’t think North Dakota would have as much to worry about as say, Florida…this would seem to take on the all embraced individualism of a State.
Well, I really hated to run the risk of insulting you, but, you know. Anyway…
I understand your concern, and I admit it is a legitimate concern as I said in reply to Pete. It’s going to be tough medicine to swallow for many seniors who have actually paid social security taxes on the promise of receiving benefits when they come of age. For all the rest (people who haven’t actually paid net social security taxes), I literally have no sympathy whatsoever. But it doesn’t change the fact that social security is in a state of irrecoverability. Nonetheless, being a Bible believer myself I harken back to when the children of Israel were wandering around in the desert preparing to go into the promised land. At one point in the story God announced to them that everyone above twenty years old would first have to die out before he would allow them to occupy ‘the land of milk and honey.’ Hmm.
Yikes!,
I hope he wasn’t checking ID
I know that we are just prolonging the inevitable, it’s going to happen. I heard or read somewhere that this mess rests squarely on the shoulders of greedy Baby Boomers The story goes, that they made quite a nice retirement for themselves, and that the returns on their investments make SS look like pocket change, some say they should have made SS unavailable to those who are financially setup. My take is that as soon as it was implemented it was doomed to fail. We all know that anything government touches can be considered doomed.
If you get the chance, see what Gerald Celente has to say about the state of the economy, and where it is heading. To some he may seem like an alarmist. But he abhors politics, and has a knack of saying exactly what he thinks. Refreshing while others are tip toeing around the obvious train wreck-in-a-tunnel that we are in.
This is just the beginning of a small wave that could turn into a Tsunami!!!
I LOVE IT!!!
It has been an interesting discussion concerning SS, but I am fearfull that the economy is going down hard, and all of us wether on SS or otherwise will feel the full force of being without.
In light of this projected poverty, my next question is: Is it possible to form a bubble of economic stability within the borders of an individual state by the use of very wise legislation and cooperation of the citizens? The success of this concept would vary depending on the resources of each individual state, thus the need for commerce between states. All this speculation on my part is predicated on the assumption that the state has successfully asserted it’s 10th Amendment rights, and will ignore the Commerce clause of section 8.
Pete,
Certainly,if the production of goods and services are allowed to proceed without the current level of federal intervention, guidelines, tax, and oversight. this would promote the growth needed. But as it is now, companies that are required to pay federal income tax every month, are required to submit to federal regulations, are limited by guidelines are effectively hamstrung..
Savings to States would include
Environmental taxes,
Communications and air transportation taxes,
Fuel taxes,
Tax on the first retail sale of heavy trucks, tractors and trailers,
Luxury tax on passenger cars, and
Manufacturers’ taxes on the sale or use of a variety of different products.
This is of coarse a very short list, But as you can see, eliminating the federal equation would promote growth in a number of sectors.
That said, it would be unwise for a state to “create a bubble” so to speak, an open market in which the unrestricted flow of goods and services is healthy for the economy.
Although I have posed some questions, and am thankful for the insightful answers posted, I would now like to share what we are doing in Idaho.
Much discussion has evolved around the question of whether the various state sovereignty declarations are meaningful legislation, or merely symbolic statements. I would submit to you, (with out going into a lengthy discussion of similarities and differences), the state sovereignty declarations and the Declaration Of Independence are basically the same. Both documents put a usurping, overreaching, and abusive authority on notice that they the colonies/state are going to assert their independence, and no longer comply with the mandates of said authority. Both documents are statements of intent, but without the force of action carry no authority on their own. As we all know the Declaration Of Independence turned out to be an awesome document by force of action of the Revolutionary war.
In order to put force of action into our state sovereignty declaration, we are sending a petition throughout the state via the teaparty movement requesting the Governor and Legislators enforce their statements as set forth in their sovereignty declaration. The petition also carries a clause requesting that the state refuse all federal funding with mandates and spending guidelines that encroach on the state’s 10th Amendment rights.
The petition serves several purposes. 1. It gives the people a chance for active participation in the fight against the “Feds” 2. It is a vehicle for uniting the various state Teaparty groups into a potential coalition of political action. 3. And as the petition gains exposer throughout the state, it is putting pressure on the Governor and Legislators to respond to the “Feds” unconstitutional mandates by preemptive legislation, which I would describe as “Nullification”.
I would be pleased to share this petition with any of you in other states, as perhaps it could serve as a template for a proactive movement in your state. I firmly believe our only chance for survival as a nation is for the states to put this Federal monster back into it’s original constitutional cage, and the more states that join this movement, the better our chance for survival as the Republic intended by our founders.
I would like to see the petition. You should post it here so we can copy it. I beleive that secession may soon be the only hope we have. I don’t say that “today” it is right, but I talk about it with a view of looking ahead. I don’t see any hope of the federal government abating its usurpations or oppressions. I think the States will reluctantly awaken one day to the need to seceed. Sad, but I do think unavoidable.
PHL, I would be glad to post it, but it will lose some impact due to the uniform format avaiable here.
Is there a way to attach it here in PDF?
I’m Next door to you Pete In Washington state, regrettably, we are in bed with Washington DC so much so that we couldn’t even get one of those toothless meaningless resolutions claiming sovereignty passed. But, I am only 2 hrs from you, If I see Idaho taking concrete steps, I’m closing my doors and on my way to Moscow.
WELL I AM 68 AND ON SS. STILL WORKING BUT I’LL SAY TO MY GREAT STATE OF OKLAHOMA GO AHEAD AND STOP SENDING THE REVENUE TO DC. I’LL GET BY WITOUT SS . REMEMBER BEFORE THE 30′S THERE WAS NO SUCH THING AS SS AND PEOPLE TOOK CARE OF THEIR OLD FOLKS. WE CAN DO IT AGAIN.