The Return of a Great Jeffersonian

by Thomas E. Woods, Jr.

Abel Upshur’s A Brief Enquiry into the True Nature and Character of Our
Federal Government is one of the finest and most systematic defenses of the Virginian
states’ rights school of constitutional interpretation ever written –
and yet hardly anyone today has even heard of it, much less read it. American
law students are amply exposed to the writing and arguments of nationalists like
John Marshall and Joseph Story, but know nothing of the Jeffersonian alternative
expounded in the work of John Taylor, St. George Tucker, Spencer Roane, or, indeed,
Abel Upshur.

Upshur (1790–1844), a Virginian statesman and legal thinker, was educated
at Yale and Princeton, and later undertook legal study in his native Virginia.
He served brief terms as Secretary of State and Secretary of the Navy in the
early 1840s until his premature death in an explosion aboard the USS Princeton.
His Brief Enquiry, though, was surely his most significant and lasting contribution
to American history.

Upshur’s book is a point-by-point refutation of Justice Story’s
immortal Commentaries on the Constitution of the United States (1833). Story,
in turn, was among the most prominent nationalist theorists of the Constitution,
holding that the American Union had been created not by discrete sovereign states
but by a single, aggregated American people. That may sound like a distinction
without a difference to those new to the subject, but it amounts to perhaps
the most important controversy in early American history – and perhaps
in all of American history.

The compact theory, which Upshur sought to uphold against the nationalist version
put forth by Story, held that the United States had been formed when the peoples
of each of the thirteen states, each acting in its sovereign capacity, ratified
the Constitution in the months and years following its drafting in 1787. (The
very fact that the states voted separately to ratify the Constitution, and that
the Constitution was not ratified by a single, consolidated vote of all individuals
in the thirteen states, is an important piece of evidence to compact theorists
that the states, rather than some single American people, created the federal
Union.) They delegated to that government a small number of enumerated powers,
reserving the remainder to themselves. Thomas Jefferson further proposed that
the states could refuse to enforce any federal law that exceeded the powers
that they had delegated to the central government. According to the compact
theory, therefore, the United States consists of distinct sovereign peoples,
organized into distinct states, as opposed to a single, aggregated people.

This is a dispute of no mean significance, since acceptance of the compact
theory opens up all kinds of radical possibilities in defense of liberty, including
both nullification (the right of a state to refuse to enforce a federal law
it considers unconstitutional) and even secession. For compact theorists, such
actions amount to the legitimate exercise of sovereignty by sovereign bodies
in defense of their liberties against a federal government that was supposed
to be the agent, not the master, of the states. The nationalist view, by contrast,
would condemn both nullification and secession, as well as lesser expressions
of state sovereignty, as illegal and possibly treasonous.

The nationalist view denies that the states established the federal government
or that the United States is a league or compact among states. The ratification
of the Constitution by state holds no significance for the nature of the Union,
according to this view. Ratification was an act of the whole people, who alone
are sovereign even if they happen to have expressed that sovereignty through
the intermediary of state conventions. State resistance to federal power, according
to this reading of the American tradition, can be conceived of only as insubordination.
The states are essentially helpless to defend themselves against the federal
government, and must instead depend for the maintenance of their liberties on
such notoriously unreliable mechanisms as national elections – as if elections
alone could prevent unjust or wicked federal legislation – or the Supreme

Upshur’s book considers the logical and historical difficulties involved
in the nationalist view. For instance, when exactly did the thirteen states
come to comprise "one people" – a central plank of the nationalist
theory – and cease to be thirteen separate peoples? If they were "one
people" because they had all been subject to the same sovereign during
their history as British colonies, that would make them "one people"
with Jamaica and Canada as well. Moreover, their common experiences as British
subjects cannot render them one people, particularly when we recall, with Upshur:

The people of one colony owed no allegiance to the government of any other
colony, and were not bound by its laws. The colonies had no common legislature,
no common treasury, no common military power, no common judicatory. The people
of one colony were not liable to pay taxes to any other colony, nor to bear
arms in its defence; they had no right to vote in its elections; no influence
nor control in its municipal government, no interest in its municipal institutions.
There was no prescribed form by which the colonies could act together, for any
purpose whatever.

And, Upshur wonders, if the thirteen states really constituted "one people,"
what would have been the status of states that chose not to ratify the Constitution?
Could the others have coerced them into the Union by force? As it turned out,
Rhode Island did not ratify until 1790 – two years after the document
had gone into effect over the other states. During that time it never occurred
to anyone that the U.S. government, by virtue of all the states having become
"one people," had any political power over that recalcitrant state.

Another serious problem for the nationalist theory to overcome is that the
Articles of Confederation proclaimed in 1781 that "[e]ach 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." There it is, as clear as anyone could ask
for: each state retains its sovereignty, freedom, and independence. The states
would have had to be sovereign in the first place in order for them to retain
their sovereignty in 1781. Thus their status as separate and distinct sovereign
states is officially acknowledged in the 1780s, meaning that any collapsing
of the distinct peoples of the states into "one people" could not
have occurred prior to that date.

But no action so collapsing them occurred after that date, either. Nor could
it, for sovereignty is neither partible nor alienable. The great international
lawyer Emmerich de Vattel observed in The Law of Nations (1758) that "several
sovereign and independent States may unite themselves together by a perpetual
confederacy, without ceasing to be, each individually, a perfect State. They
will together constitute a federal republic: their joint deliberations will
not impair the sovereignty of each member, though they may, in certain respects,
put some restraint on the exercise of it, in virtue of voluntary engagements."

Nationalists may be able to scrape together some kind of reply to these objections,
though the persuasiveness of such a reply seems dubious. But Upshur’s
book is filled with intractable problems for the nationalist position. With
states’ rights having gone out of fashion, complacent nationalists have
felt little need to bother replying to them, but they are serious and almost
certainly insuperable objections all the same.

No plank of the nationalist theory is left standing in the wake of Upshur’s
relentless arguments from reason and history. But that version of the American
constitutional tradition, however nonsensical and poorly supported by the evidence,
was perceived as having been vindicated on the battlefield in 1865, and works
like this one thus found themselves consigned to the dustbin of history. They
were replaced by and large by the nationalist treatises they had successfully
defeated in argument but that were found to suit the new, one-and-indivisible
Union rather better.

Abel Upshur’s Brief Enquiry could have been a classic, but the historical
winds blew in the wrong direction. Its recovery by Vance Publications rectifies
a long-standing injustice, and brings this magnificent and powerful defense
of a decentralized political order to a modern audience for the very first time.

Copyright © 2006 Thomas E. Woods, Jr.

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