Tuesday, April 04, 2017

Confederate "Heritage" Month 2017, April 4: Thomas Jefferson vs. secession

Thomas Jefferson was alive and engaged with public issues during several of the most important disputes involving secession of states from the Union in some way. In "Thomas Jefferson, Coercion, and the Limits of Harmonious Union" (Journal of Southern History 4:2008), Brian Steele looks at Jefferson's position on those issue throughout his career, concluding that Jefferson was consistent in recognizing that the Union can and should resort to coercion, including military coercion, in the case of a state trying to succeed or blatantly defying federal authority.

Jefferson, Steele argues, "was willing to enforce federal law in the face of opposition by state and local authorities, that he believed the Union was empowered to coerce a seceding state, and that he claimed executive prerogative in cases of national self-preservation or even of national interest."

Southern secessionists and later segregationist advocates of "states rights" and interposition (nullification) pointed to the Virginia and Kentucky Resolutions of 1798 and 1799. James Madison was heavily involved in drafting the former, Jefferson the latter.

The text of Resolutions Adopted by the Kentucky General Assembly can be found at Princeton's Papers of Thomas Jefferson website, The Kentucky Resolutions of 1798, which also has a discussion of the somewhat uncertain nature of Jefferson's contribution to their drafting. Monticello.org (Thomas Jefferson Foundation) also has a discussion of the Kentucky and Virginia Resolutions. The causes to which the Kentucky Resolutions, largely written by Jefferson and excerpted below, were the Alien and Sedition Acts passed and being enforced by the John Adams Administration. They were directed against immigrants, described in the excerpt as "the friendly strangers ... to whom the mild spirit of our Country and its laws had pledged hospitality and protection." They also authorized broad powers of repression to the federal government against the free press and free speech.

VIII. Resolved, that the preceding Resolutions be transmitted to the Senators and Representatives in Congress from this Commonwealth, who are hereby enjoined to present the same to their respective Houses, and to use their best endeavours to procure at the next session of Congress, a repeal of the aforesaid unconstitutional and obnoxious acts. ...

IX. Resolved lastly, that the Governor of this Commonwealth be, and is hereby authorised and requested to communicate the preceding Resolutions to the Legislatures of the several States, to assure them that this Commonwealth considers Union for specified National purposes, and particularly for those specified in their late Federal Compact, to be friendly to the peace, happiness, and prosperity of all the states: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the states all the powers of self government, and transfer them to a general and consolidated Government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness, or prosperity of these states ...

Let him say what the Government is if it be not a tyranny, which the men of our choice have conferred on the President, and the President of our choice has assented to and accepted over the friendly strangers, to whom the mild spirit of our Country and its laws had pledged hospitality and protection: that the men of our choice have more respected the bare suspicions of the President than the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms & substance of law and justice. 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. That this Commonwealth does therefore call on its Co-states for an expression of their sentiments on the acts concerning Aliens, and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorised by the Federal Compact? And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited Government, whether general or particular, and that the rights and liberties of their Co-states will be exposed to no dangers by remaining embarked on a common bottom with their own: That they will concur with this Commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration, that the Compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these states of all powers whatsoever: That they will view this as seizing the rights of the states and consolidating them in the hands of the General Government with a power assumed to bind the states (not merely in cases made federal) but in all cases whatsoever, by laws made, not with their consent, but by others against their consent: That this would be to surrender the form of Government we have chosen, and to live under one deriving its powers from its own will, and not from our authority; and that the Co-states recurring to their natural right in cases not made federal, will concur in declaring these acts void and of no force, and will each unite with this Commonwealth in requesting their repeal at the next session of Congress [my emphasis]
In hindsight, it's easy to see how secessionists and segregationists could have used such language as "declaring these acts void and of no force" to be precedent for the claims of secession, Calhoun-style nullifiction or George Wallace-style "interposition."

But these resolutions, including those of Virginia primarily written by Madison, did not call for or threaten secession. Nor did they declare that the states would offer forceful resistance to federal officials enforcing federal law. As seen above, the action the Kentucky legislature was requesting from other states was to join them in protesting the unconstitutionality of the Alien and Sedition Acts and "in requesting their repeal at the next session of Congress." Steele observes:

To be sure, Jefferson's Kentucky Resolutions have been understood as giving sanction to later secession movements, and it is not always a simple matter to reconcile Jefferson's views on coercion with his stance in the 1790s. Nevertheless, the Virginia and Kentucky Resolutions did not advocate - or even broach - secession, and there were substantial qualitative differences between them and the later claims made by some New England Federalists and South Carolina nullifiers, despite the claims to Jefferson's legacy made by the latter group in particular. Much of the way we have thought about and understood the 1790s has been distorted by our viewing that period through the lens of later events, particularly those of the 1830s and, especially, 1860-1861.
It requires some imagination to picture it now, but in the 1790s, the principle of judicial review on Constitutional issues had not yet been established. It was really after the Civil War that it was firmly. When the Constitution was being written, Jefferson had preferred to see it include judicial review explicitly, but it wasn't included. Ironically, the famous case in which the Supreme Court first asserted its power of judicial review of Constitutional questions, Marbury v. Madison (1803) was a decision against Jefferson's Presidential Administration. So the Virginia and Kentucky Resolutions were protests stating that, in the opinion of those state legislature, the Alien and Sedition Acts were unconstitutional.

The discussion of "states rights" has been greatly complicated by the history of secession and nullification/interposition. But disputes between the states and the federal government over laws and policies continues today, notably on the enforcement of federal immigration laws. States no longer attempt to secede or nullify laws in these disputes. That ship has long since sailed. But they do go to court over them. And they also lobby for changing federal laws they don't like - which is what the Virginia and Kentucky Resolutions were demanding.

Rachel Maddow the other night did report there was some kind of Russian plot to promote California secession. If that is so, it has managed to keep itself remarkably concealed from actual Californians.

There are several reference in the above excerpt from the Kentucky Resolutions to what is know as the contract theory of the Union, to which Jefferson adhered. At the time of the Civil War, secessionists were fond of citing this compact theory, while leaders like Lincoln rejected it. Here, it's important to note that the compact theory was not just secession propaganda. It was a serious political theory. But, as Steele reminds us, the compact theory did not inherently involve the right of a state to secede from the Union: "The compact theory of the Union governed by the law of nations could lead to different kinds of conclusions about the nature of that union."

As we'll see in tomorrow's post, Jefferson understood the compact theory to mean that the federal government indeed had the legitimate right to compel individual states to comply with the "compact," including the use of military force. Steele describes Jefferson's application of the contract theory in the Kentucky Resolutions this way:

In the Kentucky Resolutions of 1798, Jefferson called the national government a "creature of the compact" - not an original party to it. There is a tendency on the part of historians to associate this compact theory of the Constitution, which Jefferson articulated, with a kind of "take it or leave it" view of the Union. Partly because Lincoln rejected the compact theory and many self-identified advocates of states' rights seemed to hold such a view, thereby tainting commitment to "states' rights" with the stain of disunion, the tendency is not altogether misplaced. But, as Jefferson told William Eustis in 1809, the Union - "the spirit of concord with her sister States" - had "placed us under that national government, which constitutes the safety of every part, by uniting for its protection the powers of the whole." The national government, in other words, might have been the "creature of the compact," but it was an umbrella of protection for that very compact, emerging out of the Union and remaining an indispensable part of it, rather than a separate entity to be ignored or discarded at pleasure. Jefferson noted, in fact, that the national government is the instrument through which the states act in their relations with each other. [my emphasis]

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