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St. George Tucker’s Jeffersonian Constitution

In American History, Arts & Letters, Books, Civics, History, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, liberal arts, Nineteenth-Century America, Philosophy, Politics, Western Civilization, Western Philosophy on October 30, 2019 at 6:45 am

This piece originally appeared here in Law & Liberty. 

One could argue that there are two basic visions for America: the Hamiltonian and the Jeffersonian. The former is nationalist, calling for centralized power and an industrial, mercantilist society characterized by banking, commercialism, and a robust military. Its early leaders had monarchical tendencies. The latter vision involves a slower, more leisurely and agrarian society, political decentralization, popular sovereignty, and local republicanism. Think farmers over factories.

Both have claimed the mantle of liberty. Both have aristocratic elements, despite today’s celebration of America as democratic. On the Hamiltonian side we can include John Adams, John Marshall, Noah Webster, Henry Clay, Joseph Story, and Abraham Lincoln. In the Jeffersonian camp we can place George Mason and Patrick Henry (who, because they were born before Jefferson, could be considered his precursors), the mature (rather than the youthful) James Madison, John Taylor of Caroline, John C. Calhoun, Abel Upshur, and Robert Y. Hayne. The Jeffersonian Republicans won out in the early nineteenth century, but since the Civil War, the centralizing, bellicose paradigm has dominated American politics, foreign and monetary policy, and federal institutions.

St. George Tucker falls into the Jeffersonian category. View of the Constitution of the United States, published by Liberty Fund in 1999, features his disquisitions on various legal subjects, each thematically linked. Most come from essays appended to his edition of Sir William Blackstone’s Commentaries on the Laws of England.

Born in Bermuda, Tucker became a Virginian through and through, studying law at the College of William and Mary under George Wythe, whose post at the law school he would eventually hold. On Tucker’s résumé we might find his credentials as a poet, essayist, and judge. He was an influential expositor of the limited-government jurisprudence that located sovereignty in the people themselves, as opposed to the monarch or the legislature, which, he believed, was a surrogate for the general will in that it consisted of the people’s chosen representatives.

Tucker furnished Jeffersonians with the “compact theory” of the Constitution:

The constitution of the United States of America . . . is an original, written, federal, and social compact, freely, voluntarily, and solemnly entered into by the several states of North-America, and ratified by the people thereof, respectively; whereby the several states, and the people thereof, respectively, have bound themselves to each other, and to the federal government of the United States; and by which the federal government is bound to the several states, and to every citizen of the United States.

Under this model, each sovereign, independent state is contractually and consensually committed to confederacy, and the federal government possesses only limited and delegated powers—e.g., “to be the organ through which the united republics communicate with foreign nations.”

Employing the term “strict construction,” Tucker decried what today we’d call “activist” federal judges, insisting that “every attempt in any government to change the constitution (otherwise than in that mode which the constitution may prescribe) is in fact a subversion of the foundations of its own authority.” Strictly construing the language of the Constitution meant fidelity to the binding, basic framework of government, but it didn’t mean that the law was static. Among Tucker’s concerns, for instance, was how the states should incorporate, discard, or adapt the British common law that Blackstone had delineated.

Tucker understood the common law as embedded, situated, and contextual rather than as a fixed body of definite rules or as the magnificent perfection of right reason, a grandiose conception derived from the quixotic portrayals of Sir Edward Coke. “[I]n our inquiries how far the common law and statutes of England were adopted in the British colonies,” Tucker announced, “we must again abandon all hope of satisfaction from any general theory, and resort to their several charters, provincial establishments, legislative codes, and civil histories, for information.”

In other words, if you want to know what the common law is on this side of the pond, look to the operative language of governing texts before you invoke abstract theories. Doing so led Tucker to conclude that parts of English law were “either obsolete, or have been deemed inapplicable to our local circumstances and policy.” In this, he anticipated Justice Holmes’s claim that the law “is forever adopting new principles from life at one end” while retaining “old ones from history at the other, which have not yet been absorbed or sloughed off.”

What the several states borrowed from England was, for Tucker, a filtering mechanism that repurposed old rules for new contexts. Tucker used other verbs to describe how states, each in their own way, revised elements of the common law in their native jurisdictions: “modified,” “abridged,” “shaken off,” “rejected,” “repealed,” “expunged,” “altered,” “changed,” “suspended,” “omitted,” “stricken out,” “substituted,” “superseded,” “introduced.” The list could go on.

The English common law, accordingly, wasn’t an exemplification of natural law or abstract rationalism; it was rather the aggregation of workable solutions to actual problems presented in concrete cases involving real people. Sometimes, in its British iterations, it was oppressive, reinforcing the power of the king and his agents and functionaries. Thus it couldn’t fully obtain in the United States. “[E]very rule of the common law, and every statute of England,” Tucker wrote on this score, “founded on the nature of regal government, in derogation of the natural and unalienable rights of mankind, were absolutely abrogated, repealed, and annulled, by the establishment of such a form of government in the states.”

Having been clipped from its English roots, the common law in the United States had, in Tucker’s view, an organic opportunity to grow anew in the varying cultural environments of the sovereign states. In this respect, Tucker prefigured Justice Brandeis’s assertion in Erie Railroad Company v. Tompkins (1938) that “[t]here is no federal general common law.” Tucker would have agreed with Brandeis that, “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.”

In fact, summarizing competing contentions about the Sedition Act, Tucker subtly supported the position that “the United States as a federal government have no common law” and that “the common law of one state . . . is not the common law of another.” The common law, in Tucker’s paradigm, is bottom-up and home-grown; it’s not a formula that can be lifted from one jurisdiction and placed down anywhere else with similar results and effects.

By far the most complex essay here is “On the State of Slavery in Virginia,” which advocated the gradual extirpation of slavery. With admirable clarity, Tucker zeroed in on the hypocrisy of his generation:

Whilst we were offering up vows at the shrine of Liberty, and sacrificing hecatombs upon her altars; whilst we swore irreconcilable hostility to her enemies, and hurled defiance in their faces; whilst we adjured the God of Hosts to witness our resolution to live free, or die, and imprecated curses on their heads who refused to unite us in establishing the empire of freedom; we were imposing upon our fellow men, who differ in complexion from us, a slavery, ten thousand times more cruel than the utmost extremity of those grievances and oppressions, of which we complained.

Despite his disdain for the institution of slavery, Tucker expressed ideas that are racist by any measurable standard today—for instance, his notion that slavery proliferated in the South because the climate there was “more congenial to the African constitution.”

On the level of pure writing quality and style, Tucker had a knack for aphorism. “[T]he ignorance of the people,” he said, “is the footstool of despotism.” More examples: “Ignorance is invariably the parent of error.” “A tyranny that governs by the sword, has few friends but men of the sword.”

Reading Tucker reminds us that for most of our country’s formative history the principal jurisprudential debates were not about natural law versus positivism, or originalism versus living constitutionalism, but about state versus federal authority, local versus national jurisdiction, the proper scale and scope of government, checks and balances, and so forth. To the extent these subjects have diminished in importance, Hamilton has prevailed over Jefferson. Reading Tucker today can help us see the costs of that victory.

Thomas Jefferson, George Wythe, and the Case of Howell v. Netherland

In America, American History, Historicism, History, Humanities, Jurisprudence, Law, Laws of Slavery, Slavery, Southern History, Thomas Jefferson on April 23, 2014 at 8:45 am

Allen 2

Howell v. Netherland was a Virginia case about the child of an interracial sexual union. Decided in April 1770, Howell opens with the account of the plaintiff’s grandmother, “a mulatto, begotten on a white woman by a negro man, after the year 1705, and bound by the churchwardens, under the law of that date, to serve to the age of thirty-one.”[1] The plaintiff, Howell, sued Netherland for his freedom. Netherland had purchased Howell from a previous owner, who had also owned Howell’s mother and grandfather.

A twenty-seven-year-old Thomas Jefferson served as Howell’s attorney. He argued inter alia that Howell’s grandmother was white, but more importantly that “under the law of nature, all men are born free.”[2] This position makes Howell a precursor to the landmark Somerset case in 1772.[3] “This is what is called personal liberty,” Jefferson says of freedom under the law of nature, “and is given him by the author of nature, because necessary for his own sustenance.”[4] Jefferson adds that “every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will.”[5] Such language, coming six years before the Declaration of Independence and eleven years before the first edition of Notes on the State of Virginia, is striking for its seeming emphasis on equality under the natural law.

Jefferson’s opposing counsel in this case was George Wythe, the man who had trained Jefferson in legal practice and who arguably did more during his lifetime than Jefferson to oppose the institution of slavery. In this case, however, Wythe remains the steadfast defender of a slave owner. This fact should remind us of the contingencies of lawyering and the conditions and qualifications that attach to any line of reasoning or rhetoric appearing in court documents about slavery.

When we review archives from the era of slavery in America, we must remember that a lawyer’s words cannot be taken as representative of his thoughts or worldview: he is a participant in a legal contest and advocating for the interests of his client. What Jefferson or Wythe thought about slavery cannot be deduced from this case, so attempts at such deduction should not be made.

[1] Howell v. Netherland, Jefferson 90, April 1770, available in Helen Tunnicliff Catterall, ed., Judicial Cases Concerning American Slavery and the Negro, Vol. 1 (New York: Octagon Books, Inc., 1968) at 90-91.

[2] Ibid., my italics.

[3] William G. Merkel, “Jefferson’s Failed Anti-Slavery Proviso of 1784 and the Nascence of Free Soil Constitutionalism,” 38 Seton Hall L. Rev. 555 (2008) at 559.

[4] Ibid.

[5] Ibid.

Glory and Indignity

In America, American History, Arts & Letters, Book Reviews, Books, Conservatism, Historicism, History, Humanities, Politics, Southern History, The South on February 20, 2013 at 8:45 am

Allen Mendenhall

The following review first appeared here at The University Bookman.

John Randolph of Roanoke
by David Johnson.
Baton Rouge: Louisiana State University Press, 2012

“I am an aristocrat. I love liberty, I hate equality.” Thus spoke John Randolph of Roanoke (1773–1833), one of the most curious, animated figures ever to grace American soil. That David Johnson’s biography of Randolph is the first of its kind since Russell Kirk published John Randolph of Roanoke in 1951 suggests how deteriorated American memory and education have become. Randolph ought to be studied by all American schoolchildren, if not for his politics then for the vital role he played in shaping the nation’s polity. Dr. Kirk declared that in writing about Randolph, he was summoning him from the shades. If so, Johnson has gone a step farther and brought Randolph into the sunshine to reveal just how spectacular a man he really was.

Kirk’s biography of Randolph was in fact his first book. Kirk dubbed the colorful Virginian a “genius,” “the prophet of Southern nationalism,” and the “architect of Southern conservatism.” In The Conservative Mind, Kirk treats Randolph as a necessary link between George Mason and John C. Calhoun and proclaims that Randolph should be remembered for “the quality of his imagination.” Randolph enabled the proliferation and preservation of the conservative tradition in America. He became an icon for decentralization and localism.

Why would a scandalous, sickly, go-it-alone, riotous rabble-rouser appeal to the mild-mannered Dr. Kirk? The answer, in short, is that Randolph was as conservative a politician as America has ever produced, and he was, despite himself, a gentleman and a scholar. Eccentric though he appeared and often acted, Randolph celebrated and defended tradition, championed small government and agrarianism, sacrificed careerism and opportunism for unwavering standards, professed self-reliance and individualism, took pains to preserve the rights of the states against the federal government, delighted in aristocratic tastes and manners, read voraciously the great works of Western civilization, cultivated the image of a statesman even as he attended to the wants and needs of his yeomen constituents, discoursed on weighty topics with wit and vigor, and adhered to firm principles rather than to partisan pandering. Admired by many, friend to few, he made a prominent display of his wild personality and unconditional love for liberty, and he devoted himself, sometimes at great cost, to the ideals of the American Revolution, which had, he claimed, marked him since childhood.

Remembered chiefly (and, in the minds of some progressives, unfortunately) for his contributions to states’ rights doctrines and to the judicial hermeneutics of strict constructionism, Randolph was responsible for so much more. The son of a wealthy planter who died too young, Randolph became the stepson of St. George Tucker, a prominent lawyer who taught at the College of William and Mary and served as a judge on the Virginia General District Court and, eventually, on the Virginia Court of Appeals, the United States District Court for the District of Virginia, and the United States District Court for the Eastern District of Virginia. A cousin to Thomas Jefferson, Randolph studied under George Wythe and his cousin Edmond Randolph. A boy who was forced to flee his home from the army of Benedict Arnold, Randolph later played hooky from college to watch the orations of Fisher Ames, the stout Federalist from New York, and Madison. He served in the U.S. House of Representatives as well as the U.S. Senate, and was, for a brief time, Minister to Russia. A supporter of Jefferson before he became Jefferson’s tireless adversary, he criticized such individuals as Patrick Henry, Washington, Madison, Monroe, John Adams, Henry Clay, and Daniel Webster. He was sickened by the Yazoo Land Scandal, opposed the War of 1812 in addition to the Missouri Compromise, and promoted nullification.

Many conservatives, Kirk among them, have tended to overlook the more unpalatable aspects of Randolph’s life, whether personal or political. For instance, Randolph was, more than Jefferson, enthralled by the French Revolution and supportive of its cause. He manufactured a French accent, used a French calendar, and called his friends “Citizens.” In his twenties, he referred to himself as a deist “and by consequence an atheist,” and he acquired, in his own words, “a prejudice in favor of Mahomedanism,” going so far as to proclaim that he “rejoiced in all its [Islam’s] triumphs over the cross.” One might excuse these infelicities as symptoms of youthful indiscretion and impetuosity, but they do give one pause.

Not for lack of trying, Randolph could not grow a beard, and although he spoke well, his voice was, by most accounts, awkward, piping, off-putting, and high-pitched. His critics have painted him as a villain of the likes of Shakespeare’s Richard III: resentful, obstinate, loudmouthed, and as deformed in the mind as he was in the body. Yet Randolph cannot be made into a monster. More than others of his station in that time and place, Randolph was sensitive to the problems of slavery, which had only intensified rather than diminished since the Founding. He freed his slaves in his will, granted them landholdings in Ohio, and provided for their heirs. Slavery was incompatible with liberty, and Randolph, despite being a product of his time, appears to have worried much about the paradox of a nation conceived in liberty but protective of institutional bondage. Randolph asserted, in some way or another, over and over again, that his politics were based on a presumption of liberty, which was (and is) the opposite of slavery and governmental tyranny. Read the rest of this entry »

The Place of Miscegenation Laws within Historical Scholarship about Slavery

In American History, Arts & Letters, Book Reviews, Communication, Economics, History, Law, Laws of Slavery, Legal Education & Pedagogy, Nineteenth-Century America, Politics, Slavery, The Literary Table, Thomas Jefferson, Western Civilization on May 17, 2011 at 8:28 am

Allen Mendenhall

The following post appeared at The Literary Table.

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Miscegenation laws, also known as anti-miscegenation laws, increasingly have attracted the attention of scholars of slavery over the last half-century.  Scholarship on slavery first achieved eminence with the publication of such texts as Eric Williams’s Capitalism and Slavery (1944), Frank Tannenbaum’s Slave and Citizen (1946), Kenneth Stampp’s The Peculiar Institution (1956), Stanley Elkins’s Slavery: A Problem in American Institutional and Intellectual Life (1959), and Leon F. Litwack’s North of Slavery (1961).  When Winthrop D. Jordan published his landmark study White Over Black in 1968, miscegenation statutes during the era of American slavery were just beginning to fall within historians’ critical purview.  The Loving v. Virginia case, initiated in 1959 and resolved by the U.S. Supreme Court in 1967, no doubt played an important role in activating scholarship on this issue, especially in light of the Civil Rights movement that called attention to various areas of understudied black history. 

In Loving, the Supreme Court struck down Virginia’s miscegenation statutes forbidding marriage between whites and non-whites and ruled that the racial classifications of the statutes restricted the freedom to marry and therefore violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.  In the wake of Loving, scholarship on miscegenation laws gained traction, although miscegenation laws during the era of American slavery have yet to receive extensive critical treatment.  Several articles and essays have considered miscegenation laws and interracial sex during the era of American slavery, but only a few book-length analyses are devoted to these issues, and of these analyses, most deal with interracial sex and miscegenation laws in the nineteenth-century antebellum period, or from the period of Reconstruction up through the twentieth-century.  This historiographical essay explores interracial sex and miscegenation laws in the corpus of historical writing about slavery.  It does so by contextualizing interracial sex and miscegenation laws within broader trends in the study of slavery.  Placing various historical texts in conversation with one another, this essay speculates about how and why, over time, historians treated interracial sex and miscegenation laws differently and with varying degrees of detail.  By no means exhaustive, this essay merely seeks to point out one area of slavery studies that stands for notice, interrogation, and reconsideration.  The colonies did not always have miscegenation laws; indeed, miscegenation laws did not spring up in America until the late seventeenth-century, and they remained in effect in various times and regions until just forty-four years ago.  The longevity and severity of these laws make them worthy our continued attention, for to understand miscegenation laws is to understand more fully the logic and formal expression of racism. Read the rest of this entry »

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