From the 2004 Abbeville Institute Summer School.
St. George Tucker is a significant member of the Revolutionary generation, the Founding Generation, and he was looked to by Jefferson and Madison as the judge of Jeffersonian democracy, the man who saved the judiciary from false doctrines in his View of the Constitution and his other writings.[1] Tucker’s View was published in 1803. The Constitution had been ratified with all of the qualifications and conditions placed on it by the ratifying States, and the first ten amendments had already been adopted to fulfill some of those qualifications. Jefferson and Madison, in the Kentucky and Virginia Resolutions and the Report of 1800 had defined the proper constitutional doctrine. All of this was accepted and normal, and Tucker’s View should be regarded as putting forth what was normal in regard to the Constitution of the United States. That same year, 1803, Tucker issued a new edition of Blackstone’s Commentaries in which he Americanized Blackstone because that eminent scholar’s writings were necessary for lawyers to know. When discussing the American Constitution, you must really discuss constitutions because the State Constitutions come before the Federal Constitution. After all, John Adams wrote A Defense of the Constitutions of the United States, not a defense of the Constitution, singular. One of Tucker’s major points is that the American Constitutions are unique. The English Constitution is an accumulation of precedents, of laws and judicial decisions. Much of it does not rest upon the consent of the people. In direct contrast, the American Constitutions are written documents. They are historical acts of the people through their chosen representatives. We know when they were written, what they say, what powers they delegated, how they were ratified, and it is not difficult to interpret them. Americans don’t have to be lawyers, judges, or law professors to understand their Constitutions – they may easily be read and understood by the farmer at his plow, the shopkeeper at his counter, the blacksmith at his anvil. They are the people’s documents. The whole point is that the people have made them, and it is the people who have granted power to the governments they thereby established. Unlike the British Constitution, American Constitutions are not evolved by law and judicial interpretation; they were created by the people at a known period and their language was plain and easy to understand. The people are the sovereigns and their Constitutions delegated certain powers to their governments – those powers and no more.
In regard to the U.S. Constitution, this meant that the people of the several States who had given their free consent were the final judges of the government and its powers. This is an eminently democratic principle, is it not, that constitutions rest upon the consent of the people? This is what the Southern Tradition always contended for; the decentralist tradition always asked to go back to the source, to the plain text of the constitutions, to the terms and powers and limitations the people consented to. What does the centralist tradition do? It relies on arcane interpretations by judges and experts, not the consent of the people. But according to Tucker, the sovereign peoples of the States have just as much right to interpret their Constitution as the Supreme Court or anybody else. The Supreme Court is a creature of the people, created by the Constitution; it is their servant, not their master. There is a myth or legend propagated by the centralists claiming that the brave people like John Marshall and Alexander Hamilton, the people who had actually fought in the Revolution and suffered the lack of support for the Continental Army, were dedicated to building a strong national government. Their patriotism motivated them to support a nationalist interpretation of the U.S. Constitution. People like Jefferson, those who didn’t fight and suffer, became the decentralists. This myth is hogwash. Serving in the Continental Army did not have that effect on St. George Tucker, John Taylor of Caroline, Nathaniel Macon, Thomas Sumter, or James Jackson, all of whom were opponents of centralization of power from the beginning.[2]
Centralism is primarily the product of nationalism, and nationalism has been a major (and not necessarily wholesome) influence in the Western world for the past couple of centuries. It must be remembered that the American War of Independence and the American Constitutions came into being before the era of nationalism. There was patriotism, the love of your people and your land, but not nationalism in the modern sense, which emerged from the French Revolution of 1789. The American founding was pre-nationalistic. Until the War to Prevent Southern Independence, patriotism was the American attitude. Nationalism is more aggressive, more government-centered, and more abstract than patriotism. It’s only with the War that we get a real nationalism and a lot of talk about “saving the sacred Union,” although it’s unclear why the Union is sacred and why it needed to be saved when the American Revolution was all about “the consent of the governed.” Nationalism is a modern phenomenon that, in a sense, rests upon following a mass media. It is energized by two main factors. The first is emotionalism or sentimentality. The second is money. Wherever we find the push for centralization, we find either a vague but aggressive sentiment, or money. The idea of “we” and of “the proposition nation,” the dogma that says “we are the people of the proposition” was not invented by the Neoconservatives, though they have certainly made much use of it. This idea was brought into the American discourse in the period before the Civil War by Germans, proto-fascists and proto-communists (they are one-and-the-same) who were refugees of the failed 1848 revolutions in Europe. These people to American with the idea that the United States was supposed to be a proposition nation. They didn’t know the difference between the Declaration of Independence and the Declaration of the Rights of Man. They wanted a society that fit their definition of freedom, which necessarily required centralization and nationalism. If we examine the propaganda and reasoning of the centralist side in the War, that becomes plainly evident. Instead of quoting a few passages from Lincoln’s prettier speeches, look at what people were really saying to justify the Northern cause – it’s “blood and iron” nationalism.[3]
Of course, while the idea of the proposition nation is very nationalistic, it is also very inter-nationalistic because it has no roots. The same thing that can be used to promote nationalism against decentralization can be used to promote internationalism (or globalism) as well, and in fact is being used to promote just that. But what does the proposition nation actually mean? When it comes down to the bottom line, it places all emphasis on government. There is no institution powerful enough to implement the great proposition that all men are equal except the government. The proposition nation, then, is really a form of government worship. It places government over society. Society is no longer that which creates government (which is the basic attitude of the American founding). No, government comes first and society is merely the raw material for government. This became very clear when Lincoln launched a massive war to preserve the machinery of the central government – not to preserve government of, by, and for the people, not to preserve the Constitution, not even to preserve the Union – but to preserve the machinery of the Federal government and the power of those people who had control of it. The Federal government is actually creating a new society. Rather than it being our government, we are its raw material. Through mass immigration the U.S. government is actually electing a new people and changing the fabric of our society, changing what we will be able to hand down to our children and grandchildren. The government is not answering to us. We are answering to the government.
The other pillar of nationalism is money. There is always an economic agenda connected with the push for centralized power. This is why, from the very first day of the government, Alexander Hamilton pushed for a national bank, a permanent national debt, and a high tariff. This is why, throughout the 19th century, the 14th Amendment was used by the Federal judiciary to protect corporations from State regulation. Centralism always goes hand-in-hand with some sort of economic agenda, an agenda which benefits the centralizers and their friends at the expense of everyone else.
For a long time, the Southern tradition was, I think, providentially decentralist, not because Southerners were better than everybody else, but because over the course of history, the South grew up without needing much government. Up until the War, Southerners had no economic agenda, no agenda of any kind that they needed to push through the Federal government. Their economy was based on exporting crops, so all they really needed was free trade with the world. There was thus no tendency to regard the Federal government as anything other than what it was supposed to be – an instrument by which to facilitate free trade and ensure the common defense. This was true from the very beginning and it had to do with a lot more than slavery. All the historians will tell you now (in unison reminiscent of the Borg from Star Trek) that everything any Southerner ever did was motivated by slavery. There is no idea and no action that doesn’t refer back to slavery. Of course, this is nonsense. The Southern position was perfectly expressed by Jefferson in his first inaugural:
“…with all these blessings, what more is necessary to make us a happy and a prosperous people? Still one thing more, fellow-citizens — a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.”[4]
That was Jefferson’s ideal government. But we had two major forces pushing for centralization of power. First was the economic push, the desire to make America into one giant protected market which favoured certain interests. To this the South and decentralization were an obstacle. Second was the cultural aggression of New England. From the very beginning the settlers of Massachusetts declared themselves to be a beacon to all mankind and a city upon a hill. They were aggressive in this and worked hard throughout the 19th century and up the present day to define themselves as America. Theirs is the true American culture. Massachusetts is the foundation of America. Unfortunately, most American discourse accepts this, just assumes it without even thinking about it. We come from the Puritan fathers. That is not true and it was not always believed, but this portion of the centralist push has succeeded spectacularly.
There are a couple of wrong assumptions that nearly everyone has now which might prevent us from reading Tucker accurately. In fact, it is very difficult to get hold of the plain language and plain facts of the Constitution. It was difficult in Calhoun’s time. Part of the reason Calhoun wrote was to point out things that were obvious but had been lost in the accretion of time. This was why Jefferson talked about a little revolution being necessary from time to time, because over the course of time a regime tends to accumulate changes and incorrect expedients. Thus, what you need is a revolution to revolve back to the essential principles which have been lost over the course of time. It’s not radical like the French Revolution. It’s a reactionary idea of revolution, to revolve back to the essential principles and get rid of the unsound and unessential detritus that has accumulated, rather like scraping barnacles from the hull of ship. For example, look at the Preamble of the Constitution. It speaks of a “Constitution for the United States of America,” not of the United States of America. That alone has a decentralist cast to it. Then there’s our modern proclivity to treat “United States” as a singular when it is really a plural. It was used as a plural throughout the Revolution, in all the founding documents, and the laws, treaties, and public discourse of the country up until Mr. Lincoln’s War. “The United States are. The United States were.” The usage was always plural. We need to remember that.
Then there’s the convention that judges determine the meaning of constitutions and we accept their judgement as final. I defy anyone to find that in the Constitution or in any of the discussions surrounding the Constitution. There was talk of judicial review. In fact, Tucker supported judicial review, by which he meant that individuals who were harmed by the government could seek redress in the courts and the courts have a certain amount of power to redress actions of the executive or legislature. That was the full extent of judicial review so far as Tucker was concerned. He says nothing about making laws or revising the Constitution through judicial fiat. Judicial review and original intent are legal matters, not Constitutional ones. We can go back and read exactly what our ancestors ratified. The people in South Carolina who undertook secession in 1860 knew exactly what their fathers and grandfathers meant when they ratified the Constitution. They didn’t need a bunch of judges or a chain of legal reasoning to explain this to them. A few years ago, a friend of mine met Judge Bork and asked him, “What about States’ Rights?” Judge Bork acted as if he didn’t know what my friend was talking about. When Bork talks about original intent, he’s referring to some speculations in the Federalist or what some previous judge has said about the Constitution, not to the ratification debates. James Madison himself said very plainly that the Constitution draws its authority, not from those who wrote it or talked about it, but from those who ratified it.[5] Therefore, its meaning and all its authority comes from that ratification and we know a lot about that. What Hamilton, Madison, and Jay speculated about in the Federalist is irrelevant. Those are political polemics designed to gain support for the Constitution. They say very little about what the people intended when they ratified that document and are useful only in a subsidiary sense, but we find political science and a great deal of law today talking about the Federalist as if it were some sacred document. We have the plain statements of the States[6] and the debates of the Ratification Conventions, and in many cases they differ with the triumvirate’s Federalist speculations.
Another assumption we bring to government today is that political parties are a part of the constitutional system. There is not a word in the Constitution about political parties. So far as that document is concerned, they do not exist. Yet, the modern political parties effectively control the regime. Another false assumption concerns Presidential power. He represents us, people say, and should be obeyed without question. He is Commander-in-Chief and leader of the people. But the President is only commander-in-chief of the armed forces, not of the populace at large, and the armed forces can only exist through appropriations Congress makes every two years. The whole system is designed to prevent the excess of military power in the President, yet we run around now calling him Commander-in-Chief. He’s not commander-in-chief of the country, or even of the Federal government. He is only commander-in-chief of the armed forces of the United States. There are even recent court cases where the Bush Justice Department has said that the Constitution does not apply to prisoners it has at Guantanamo Bay and other places outside the United States. “The Constitution doesn’t apply there so we can do anything we want.” St. George Tucker’s reply to this would be instant and clear: “The government does not exist except by virtue of the Constitution. Therefore, everything the government does is under the Constitution.” The argument Bush is making in Ashcroft is essentially the same argument Lincoln made, that the government has some sort of existence in itself beyond the people’s grant of consent in the Constitution.
Tucker had the following to say about jurisdiction:
“‘For the constitution of the union is the source of all the jurisdiction of the national government; so that the departments of that government, can never assume any power, that is not expressly granted by that instrument, nor exercise a power, in any other manner than is there prescribed.’[7] This is, indeed, a short, clear, and comprehensive exposition of the principles of a limited government, founded upon compact between sovereign and independent states. For it cannot, I presume, be denied, or even doubted, that the constitution of the United States, is the instrument by which the federal government was created; its powers defined; their extent limited; the duties of the public functionaries prescribed; and the principles according to which the government is to be administered, delineated.”[8]
That is the Constitution, and it is a living Constitution, but not in the sense the judges talk about now. When they say “living Constitution,” they mean, “We can reinterpret it any way we want.” That was not Tucker’s meaning. He meant the Constitution is a grant of the people and its meaning remains in their hands. The people are a party in all the instruments of government on both the Federal and State levels. This is a dynamic process, not a dead static thing. All constitutions can be altered – there are no laws of the Medes and Persians here – but it must be the people, not the government, doing the altering. Whereas the way we deal with the Constitution now (and have done since Lincoln), is that the people have a right to consent one time. We consented one time and have to obey the government forever after. That is essentially what Lincoln proclaimed and what we live under today. We have no say-so anymore. We consented to the Constitution, and we also have to obey the Supreme Court when they tell us what the Constitution means. That is pretty far from a government of the people, it seems to me.
The nationalistic group-think of modern Americans is something we certainly do not find among the Founders, nor in the Southern tradition. Indeed, we find very little of it until the Civil War. “We have to overthrow Saddam Hussein. We have to do away with drugs.” Who is “we?” I don’t belong to any subjective entity called “we” that has these emotional decisions that are to be immediately implemented by the government. As far as I’m concerned, the government is at its very best a necessary evil that needs to be watched and restricted as much as possible. That is certainly the tradition both of the South and of the Founding. Tucker was a member of the Founding Generation and he wrote after the ratification of the Constitution, after the adoption of the Bill of Rights, and after the Virginia and Kentucky Resolutions. His purpose was the creation of a handbook for the use of people practicing law. Both Tucker and John C. Calhoun had a great deal to say about the Federalist not being binding in regard to anything. They might illuminate some things, but the notion that the Constitution’s meaning is explicated by the Federalist is nonsense. The Constitution means what those who ratified it intended it to mean. That’s where it gets its authority. It is to be interpreted by that authority, not by some sequence of judicial decisions.
The question of the common law came into Tucker’s notice and he zeroed in on it as a very important question. The common law is a part of the fabric of life and of the whole legal system that we Americans have from our English inheritance, and there’s no about that. But a question does arise: What is the role of the common law in America? Tucker was concerned about some statements made by some of the Supreme Court Justices who asserted that the common law is naturally assumed to be a part of the Federal legal system. This aroused Tucker’s vigorous dissent. There was a great deal of discussion about this at the time, and Tucker basically said: “Wait a minute.” If the Federal judges can bring the common law into their decisions, that means the Federal judiciary has absolutely no limits to its jurisdiction, because the common law touches on every aspect of life. There is nothing outside the purview of the common law. Thus, if we say that the Federal judges can incorporate the common law into legal proceedings, we have given the Federal judges -indeed, the whole Federal government- power over every human action and condition in the United States. Of course, that was the intention of the centralizers. Tucker wasn’t on board with that. He was essentially saying: “Wait a minute here.” The Federal judiciary is given specific jurisdiction over Federal legal matters. Federal matters are spelled out in the Constitution. The Federal judiciary doesn’t have any powers that go beyond the Constitution. This is a usurpation of power. The American States have each incorporated different parts of the common law that are useful to them, but that differs from State to State. The common law has thus entered into the legal system, but not into the Federal system, which is a system of specifically limited powers and jurisdiction.
“My present purpose, therefore, is, in the compass of this note to enquire, how far the common law of England, is the law of the federal government of the United States? Should the enquiry seem long, to some of my readers, the importance of the subject I trust, will be deemed a sufficient apology for it. A question has lately been agitated, whether the common, or, unwritten law of England, has been adopted in America, by the establishment of the constitution of the United States; or, in other words, how far the laws of England, both civil and criminal, make a part of the law of the American States, in their united and national capacity.”
Tucker then quotes a couple of Supreme Court Justices who have suggested that that is indeed the case.
“This question is of very great importance, not only as it regards the limits of the jurisdiction of the federal courts; but also, as it relates to the extent of the powers vested in the federal government. For, if it be true that the common law of England, has been adopted by the United States in their national, or federal capacity, the jurisdiction of the federal courts must be co-extensive with it; or, in other words, unlimited: so also, must be the jurisdiction, and authority of the other branches of the federal government; that is to say, their powers respectively must be, likewise, unlimited.”
Tucker see this clear and present danger and does his utmost to call attention to it. If we stand back and look at the decentralist tradition over the long haul, from the Revolution up to the Confederacy, it becomes clear that one of the many dishonest coups the centralists have accomplished is that, in considering American history, it is conventional to think of centralism as the natural thing and decentralism as an aberration. Centralism was ordained by these god-like Founding Fathers who got together and decreed a new nation, and that is (supposedly) the true American story. The decentralist tradition is merely a rationalization -an evil rationalization- that was made up late in the game by Southerners to defend slavery and which runs in conflict to the true American tradition. That is a lie. The exact opposite is the truth. Up until the War, even during the War, the burden of proof was always on the centralizers. The normal and natural condition of the American system was the decentralized Union of the States. Almost everyone took that for granted, and the people that didn’t take for granted, the centralizers, were people who had an agenda that could only be accomplished by centralization. They almost always succeed by deceit and coercion. Deceit and force are the modus operandi of centralism throughout American history.
Another centralist argument is that anyone who argues for States’ Rights and a limited view of the powers of the Federal government is a pettifogger resorting to extreme, convoluted interpretations to justify bad causes. Yesterday, I read an article in one of the most important journals in American history, in which the author made a passing reference to “Calhoun’s labyrinthine theories of the Constitution.” The man has never read Calhoun, I’m sure, and doesn’t know what he’s talking about. He’s just making a comment that he knows is what people want to hear. Calhoun certainly argues vigorously, closely, and at length, but there’s nothing labyrinthine about it. His writings are as concise and clear as they can be. This is the case with all Southern discussions. Jefferson and Calhoun argue the Constitution historically. They don’t resort to legalisms. It’s the centralizers who rely on legalisms and semantics, dragging out interpretations to justify their agenda. Few phrases have ever been stretched so thinly or so far as “necessary and proper” has been. The decentralist arguments are not legalistic, semantical, or complicated. Jefferson is not. Calhoun is not. St. George Tucker is not. When Alexander Stephens wrote his Constitutional View of the Late War Between the States, he presents it as a Socratic dialogue or symposium, not a legalistic argument.[9] Consider Albert Taylor Bledsoe’s Is Jefferson Davis a Traitor?[10] Bledsoe was a philosopher, mathematician, and clergyman. Robert Lewis Dabney, who wrote A Defence of Virginia, was a theologian.[11] Basil Gildersleeve, author of The Creed of the Old South, was a classicist.[12] All of these are humane, broadly-educated people. They’re not pettifogging legalists making up arcane arguments to justify States’ Rights.
Look at the other side, the great centralizers. Justices John Marshall and Joseph Story are lawyers and nothing but lawyers. Daniel Webster was a lawyer, and his arguments for centralization were carried on in speeches which were emotional but without substance, and in extremely legalistic court cases. Abraham Lincoln is the perfect example. Lincoln was a corporate lawyer. I doubt he ever read the Federalist or the ratification debates or the journal of the Philadelphia Convention. If he had, it doesn’t matter. He would have read them like a lawyer looking for points with which to argue a case, not like a statesman looking for the truth of the Founding. As a lawyer, he would have gone through looking to pick out supports for a plausible argument. His whole life was that of a man who argues for pay. That was not the case with Calhoun or Jefferson Davis or the other Southern spokesmen. So, there was a different approach, and the pettifoggers are the centralists. They have to be because they’re making it up as they go along. It is the decentralist tradition that is the natural and normal thing, as Tucker demonstrated in 1803.
[1]For Tucker’s proposal to abolish slavery, see: https://archive.org/details/dissertationonsla00tuck/page/n3/mode/2up For his defense of the Louisiana Purchase, see: https://archive.org/details/reflectionsonces00tuck/mode/2up
[2]For Taylor’s New Views of the Constitution, which Wikisource curiously fails to mention, see https://archive.org/details/newviewsconstit00taylgoog/page/n6/mode/2up
[3]The policy of “blood and iron” was how Otto von Bismarck united Germany under the Prussian-dominated Kaiserreich. https://ghdi.ghi-dc.org/sub_document.cfm?document_id=250b
[4]Thomas Jefferson, First Inaugural Address, 4 March 1801. https://avalon.law.yale.edu/19th_century/jefinau1.asp
[5]“As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the [Philadelphia] Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.” –Madison to Thomas Ritchie, 15 September 1821. https://founders.archives.gov/documents/Madison/04-02-02-0321 See also Madison’s remarks in the Report of 1800: https://founders.archives.gov/documents/Madison/01-17-02-0202
[6]All thirteen original State ratifications are in this collection, about 2/3 of the way down the page. They are transcriptions reprinted from Volume II of the Documentary History of the Constitution, which can be found here: https://archive.org/details/documentaryhist01statgoog/page/n8/mode/2up
[7]Tucker is quoting Justice Chase’s decision in U.S. v. Worrall: https://www.law.cornell.edu/supremecourt/text/2/384
[8]There are no page numbers provided, but the text can easily be located via a word search here: https://oll.libertyfund.org/title/tucker-view-of-the-constitution-of-the-united-states-with-selected-writings
[9]Stephens, of course, was the Vice-President of the Confederacy.
[10]Bledsoe was Assistant Secretary of War to Jefferson Davis, who dispatched him to Britain to make historical studies in 1863.
[11]Dabney famously served as chief-of-staff to Stonewall Jackson. He served “Old Blue Light” well, but is probably best remembered for the humorous incongruity of his habits with the life of a soldier. Carrying an open umbrella through a forest on horseback, for example, which ended poorly the umbrella.
[12]Gildersleeve had served in the First Virginia Cavalry and as an aide to Maj. Gen. John B. Gordon.
