Jefferson and States’ Rights
Thomas Allen
In Chaining Down Leviathan: The American Dream of Self-Government 1776-1865 (McClellanville, South Carolina: Abbeville Institute Press, 2021), Luigi Marco Bassani discusses Thomas Jefferson’s concept of States’ rights. The following summarizes that discussion.
Jefferson used “State” to designate the people of a State and not its government, which the people (body politic of that State) created. He advocated localism over nationalism; localism is more closely tied to liberty than is nationalism. Therefore, local interest should be superior to the national interest. Further, he supported self-government and elected officials being directly responsible and linked closely to the voters. Thus, he endorsed natural rights, limited government, and popular sovereignty.
Moreover, the government should be restricted to protecting life, liberty, and property and have a laissez-faire approach in economic matters. Consequently, he opposed the concentration and consolidation of power in a single center and, therefore, fervently opposed a strong federal government that decided the limits of its power.
States’ rights were the best and surest way to prevent the consolidation of power in the federal government. After all, the States had created the federal government as their agent to manage their common affairs, such as foreign relations. They did not create it to rule over them and to manage their internal affairs.
For Jefferson, tyranny rose from the concentration of power. States’ rights were the mechanism by which such tyranny could be prevented. Only by strictly construing the Constitution could the States be saved from being subservient to the federal government. Only when a State acting individually and independently could decide if a federal act exceeded the authority delegated to the federal government and could nullify such unconstitutional act within its territorial limits would the liberties and rights of the people be protected.
Jefferson favored a constitution that united the States concerning foreign affairs but kept the States separate and distinct in domestic concerns. Thus, the States were independent in everything within themselves but were united in everything respecting foreign countries. However, he opposed becoming entangled with other countries; therefore, he favored allowing merchants the freedom to manage their trade with foreign countries.
The Kentucky Resolutions, which Jefferson wrote, expressed the core of his concept of federalism, States’ rights, and constitutional doctrine. According to the Kentucky Resolutions, each State had the right to nullify within its own territory any federal act that if found exceeding the powers delegated to the federal government without the need of other States joining it. Thus, the Kentucky Resolutions expounded the political and judicial philosophy of Jefferson’s States’ rights.
Jefferson believed that the States were much better defenders of individual liberties than were federal courts. Consequently, he replaced the doctrine of natural rights as expounded by federal courts with the doctrine of States’ rights, which were more powerful and effective at protecting the liberties of individuals. Therefore, the States should be responsible for guarding the constitutional balance against the consolidation of power in the federal government.
As sovereign powers, the States entered into a compact to create a federal government as their agent, subordinate to the States, to carry out well-defined, limited functions. Since the States were sovereign parties that entered into the constitutional compact, the federal government, their agent, had no authority to expand its power without the agreement of the contracting parties, the States.
Consequently, Jefferson maintained that each State acting individually and independently could decide if an act of the federal government was contrary to the Constitution. If it found such an act unconstitutional, it could nullify that act within its territory.
Although Jefferson adored the Union, he valued the right of local self-government even more. Thus, he insisted that freedom and self-government could not be subordinated to the Union. Like many people before 1861, he contended that the Union was an experiment in liberty and not an end in itself. Moreover, he thought that local self-government and not the Union was the guarantor of the safety and happiness of the people.
Also, Jefferson objected to the notion that the Constitution gave the federal government implied powers as Alexander Hamilton had argued. Furthermore, the Supremacy Clause in the Constitution did not give the federal government absolute supremacy over the States. Not all federal laws are the supreme law of the land. Only those laws enacted pursuant to one of the delegated powers are supreme. Otherwise, State laws are supreme.
To Jefferson, the Union was a true federation with the federal government having a few delegated functions and powers as set out in the Constitution. Only with the consent of the States through the amendment process could it expand its power. He considered federalism as an end in itself with self-governing States being supreme over the federal government. Moreover, he rejected the notion that the Bill of Rights applied to the States and asserted that it only applied to the federal government.
Jefferson also rejected the notion that a federal common law existed. Each State had its own common law system that applied solely within its borders. However, no American common law existed.
He feared that if the federal legal system incorporate common law, Congress could expand its power by revising and integrating the principles of common law. If this were to happen, constitutional limitations on the federal government would vanish. Congress could legislate in all cases whatsoever. If common law were to limit federal legislative activity, then the judiciary would acquire legislative power. If common law became a body of law, the Constitution would cease limiting the powers of the federal government. In any event, the incorporation of American common law into the federal legal system would be disastrous for the liberties of the people and States’ rights. The Constitution and federal common law could not coexist in the American system of government.
Jefferson rejected the notion of the Supreme Court, which was part of the federal government, being the final arbitrator between a State and the federal government. If the Supreme Court were the final arbitrator, then Congress and the President, which were also part of the federal government, were being adjudicated by another part of the federal government, the Supreme Court, and not by the Constitution. If the federal government could force the States to comply with all federal laws whatsoever, whether according to the Constitution or in flagrant violation of it, then federalism would cease to exist except in name only. Consequently, the States were and ought to be the final judges of the constitutionality of federal acts. (Being part of the federal government, federal courts has no incentive to prevent the consolidation of power in the federal government. History has shown that not only do federal courts place little constraint against such consolidation, but they have often led in such consolation.)
Thus, Jefferson maintained that the authority of the Supreme Court to decide in the last resort did not extend to the rights of the States, which were parties to the constitutional compact. The States gave federal judges their delegated trusts. As original parties to the constitutional compact, each individual State was the ultimate judge of whether an act of the federal government was compatible with the Constitution. As a creation of the Constitution, the Supreme Court could not be the ultimate judge.
Since the defeat of the Confederacy, the federal government has been suppressing States’ rights and has almost extinguished them. As a result, liberty has faded and the tyranny that Jefferson feared has happened.
Copyright © 2022 by Thomas Coley Allen.
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