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Thomas Jefferson versus John Marshall on the Nature of the American Union (2006) – Article by G. Stolyarov II

Thomas Jefferson versus John Marshall on the Nature of the American Union (2006) – Article by G. Stolyarov II

The New Renaissance Hat
G. Stolyarov II
July 26, 2014
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Note from the Author: This essay was originally written in 2006 and published in two parts on Associated Content (subsequently, Yahoo! Voices) in 2007.  The essay earned over 1,900 page views on Associated Content/Yahoo! Voices, and I seek to preserve it as a valuable resource for readers, subsequent to the imminent closure of Yahoo! Voices. Therefore, this essay is being published directly on The Rational Argumentator for the first time.  
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~ G. Stolyarov II, July 26, 2014

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Thomas Jefferson’s Views on the American Union as a Compact Among the States

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Early American political thought about the Union’s nature was divided into two radically different perspectives. One of these was expressed by Thomas Jefferson’s 1798 Kentucky Resolutions, which viewed the Union as a loose compact of the states, whose legislatures could overrule and judge the constitutionality of the federal government’s actions. The South Carolina Declaration of Causes (1860) and the Mississippi Resolutions (1861) developed this position-using Jefferson’s premises to justify Southern states’ secession from the Union.

Jefferson portrayed the Union as voluntarily entered into by the states; the states were “not united on the principle of unlimited submission to their general government” (KR, 153). The Union was created by the ratification of the Constitution, which served as a “compact” by which the states “delegated… certain definite powers” to the general government (KR, 154). The government’s exercise of powers not expressly granted to it by the Constitution was thus illegitimate. For Jefferson, the Constitution both defined and limited the Union’s nature and essence.

To keep the national government one of limited and expressly delegated powers, Jefferson warned that it should not be “the exclusive or final judge of the extent of the powers delegated to itself” (KR, 154), since that would allow the government to define the scope of its powers and dissociate these powers from their original source – the states. The states – as parties to the Constitutional compact – have no common judge among them; hence, “each party has an equal right to judge for itself, as well of the infractions as of the mode and measure of redress” (KR, 154). Jefferson acknowledged state legislatures’ right to judge federal actions’ constitutionality.

The South Carolina and the Mississippi legislatures agreed with Jefferson that the Union was a compact among the “free and independent states,” whose sovereignty was asserted in the 1776 Declaration of Independence (SCDC, 310). In 1787, deputies sent by the states affirmed the “Articles of Union”-the Constitution-which defined the Union and required the states’ consent to take effect (SCDC, 311). The South Carolina Declaration emphasized that – while only nine out of thirteen states needed to ratify the Constitution for it to be adopted-those that refused to ratify it would have remained “separate, sovereign states… exercise[ing] the functions of… independent nation[s]” (SCDC, 311). Via the Tenth Amendment, the Constitution assured that all powers not expressly delegated to the national government were left to the states or the people, while the federal government remained “limited to the express words of the grant” (SCDC, 311).

In the Southern legislatures’ view, the Constitution established the “law of compact” (SCDC, 311), which required mutual reciprocity of obligations on behalf of all parties to the Union. If any party – such as the Northern states – refused to fulfill its Constitutional obligations and infringed on the rights of the other parties, the Union was dissolved and “the ends for which this government was instituted have been defeated” (SCDC, 312). The Mississippi Resolution asserted that whenever the compact is thus destroyed, “parties to the compact have the right to resume, each state for itself, such delegated powers” (MR, 314) as they had formerly granted the national government. According to the Mississippi Resolution, the Northern states’ explicit unwillingness to enforce the Constitution’s fugitive slave clause justified the Southern states’ secession from the Union (MR, 315). Jefferson’s Kentucky Resolutions and the declarations of the South Carolina and Mississippi legislatures viewed the Union as a compact of sovereign states that retained broad powers and could exercise them to counter federal abuses.

John Marshall’s View of the American Union as a Direct Association of the People

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John Marshall’s McCulloch v. Maryland (1819) decision stated a view which directly contradicted Thomas Jefferson – a view of the Union as a direct association of the people – not of the states. Marshall denied states the ability to overrule federal actions. Abraham Lincoln’s First Inaugural Address (1861) reinforced this view and argued that the Union was perpetual and could not be dissolved by individual states.

Marshall’s vision of the Union differed sharply from Thomas Jefferson’s. According to Marshall and contrary to Jefferson, the Union was not a compact between the states, but an association created directly by the people. Although the Constitutional Convention’s delegates were elected by state legislatures, the Constitution itself was “submitted to the people” (MMD, 149) for ratification. The Constitutional Convention’s delegates ordained that special conventions in the states – not the state legislatures – ratify the Constitution. Marshall emphasized that “from these conventions, the constitution derives its whole authority” (MMD, 149); thus, “[the] government proceeds directly from the people” (MMD, 149). The states were only instrumental to the Union insofar as their legislatures “called a convention, and thus submit[ed] that instrument to the people” (MMD, 149).

Marshall believed that the national government was granted enumerated powers by the people and was hence free to exercise those powers “directly on them, and for their benefit” (MMD, 149), without states’ interference. Marshall’s view, unlike Jefferson’s, does not permit the states to overrule an act of Congress or to declare it unconstitutional. Marshall interpreted the Constitution’s “necessary and proper” clause to mean that “the government of the Union, though limited in its powers, is supreme within its sphere of action” (MMD, 150); it could use any means necessary to fulfill powers expressly delegated to it, and the states could not legitimately overrule its actions.

Abraham Lincoln challenged claims that the Union was founded via the Constitution. Lincoln traced the Union’s origin back to the Articles of Association in 1774; the Constitution’s purpose was not to create the Union, but merely to “form a more perfect” one (FIA, 121). The Union is not conditional; it “is perpetual,” since “no government proper ever had a provision in its organic law for its own termination” (FIA, 121). The Constitution provides no terms under which the Union might be destroyed; therefore, it will continue to “endure forever” if the Constitution is followed (FIA, 121). Lincoln developed this argument to claim that “no State upon its own mere motion can lawfully get out of the Union” (FIA, 122); any attempt at secession amounts to insurrection. Secession would only set a highly negative precedent for any minority that did not acquiesce to the majority’s decisions. Lincoln saw it necessary for the Union to maintain itself by all constitutional means-though he initially hoped to avoid bloodshed in reconciling the states.

John Marshall and Abraham Lincoln saw the Union as a perpetual association of the people – incapable of being overruled or dissolved by individual states’ actions. This view, incompatible with the ideas of those who saw the Union as a compact among the states, fueled disputes that would eventually culminate in the Civil War.