As readers of this delightfully passionate work will infer, the U.S. Department of Education is unconstitutional. Nevertheless, before it does the country a great service by abolishing itself, the department ought to issue a mandate requiring every secondary school in the nation to adopt the next edition of Reclaiming the American Revolution as required reading. Such a directive would violate the principles of state autonomy that the book advocates, but you can’t make an omelet without cracking a few eggs.
Mr. Watkins’ slim volume (163 pages of text and about 70 pages of notes, appendices, and index), does a truly astonishing job of reviewing the highlights of American history in general and the battles over “federalism”—the proper allocation of responsibility and jurisdiction between the state and federal governments—in particular. Our youth are increasingly ignorant of the basic facts of our country’s history, and even adults are generally clueless about the Framers’ intentions with regard to the meaning of our Constitution. Watkins offers a remedy. In a work of subtle erudition and yet simple language, he recaptures the sublime understanding of human nature and political science of such late-18th-century geniuses as Madison and Jefferson and makes a powerful case for their relevance to the present day.
The ostensible foci of this book, as indicated in the subtitle, are the Kentucky and Virginia Resolutions of 1798, drafted respectively by Jefferson and Madison. These measures, passed by the legislatures of the two states, called on their sister states to join in opposition to the federal administration of John Adams. The first third of the book is a review of the measures of the Washington and Adams administrations that so irked the Jeffersonian Republicans, including Alexander Hamilton’s scheme for funding the national debt in order to create a class of rich commercial speculators beholden to the central government; the creation of a national bank to aid that class; the making of a treaty with Great Britain that seemed to favor her over France, while failing to redress long-standing American grievances; and the passage of the Alien and Sedition Acts, which greatly expanded the federal government’s power to punish crimes, and—to Jefferson and Madison, at least—seemed wrongly and unconstitutionally to restrict freedom of the press.
None of the other states joined Virginia and Kentucky in protest, and the immediate point of the resolves was rendered moot when the Jeffersonian Republicans swept into power in 1800, taking control of the presidency and the Congress and reversing many of the policies and much of the legislation of the previous administrations. Still, as Watkins shows us, the three key principles of what he calls these “sacred texts of 1798”—the compact theory of the Constitution, the locus of ultimate sovereignty, and the proper division of legislative sovereignty—have played a major role throughout most of American history and are ignored today at our peril.
The compact theory holds that the Constitution of 1787 is the result of an agreement among 13 sovereign states, which have the right to secede from the agreement if its terms are not followed. This was the theory invoked, for example, by the New England states when they resisted Jefferson’s embargo, by South Carolina when she resisted the tariff of abominations, and, of course, by the Southern states when they sought to secede from the union following the election of Abraham Lincoln. One could quibble over the validity of the compact theory—and, indeed, Supreme Court Justice Joseph Story, in his seminal Commentaries on the Constitution, (1833) did a decent job of demolishing it in favor of his and the Federalists’ theory that the Constitution was an act of the American people themselves, not of individual states, thus throwing the right of secession into question. Nevertheless, Watkins shows that, to use his favored adjective, belief in the compact theory and secession was not “heterodox,” at least until the North’s victory in the Civil War.
The compact theory locates sovereignty in the state governments rather than in the American people as a group of individuals; this theory of ultimate sovereignty leads (as the Tenth Amendment proves) to the conclusion that the proper division of legislative sovereignty is to leave most matters to the states, reserving only interstate and foreign commerce and national defense to Congress and the president. It also implies that making the U.S. Supreme Court the sole arbiter of the constitutionality of acts of the federal and state governments is wrong and that the states themselves are permitted, perhaps even encouraged, to keep the federal government within bounds, even if the means to do so is the threat, or the exercise of the right, of secession from the Union.
Whatever this argument represented in the early 19th century, it is the height of heterodoxy now. Nevertheless, Watkins courageously maintains it and shows that Abraham Lincoln, the man who did more than anyone else to undermine the principles of 1798, got it wrong. In January 2001, in a special issue of this magazine devoted to defining paleoconservatism, Donald W. Livingston argued that “the litmus test” for American conservatism was an understanding that Lincoln was not the great statesman he is almost invariably portrayed as being; rather, he was a betrayer of our constitutional tradition and an inept warmonger who needlessly sacrificed the lives of 600,000 Americans.
Dr. Livingston would happily apply the conservative label to Mr. Watkins. Because of his rejection of secession, his decision to defeat the compact theory by bloody combat, his suspension of habeas corpus and other civil liberties, his suppression of the free press, and his interference with democratic elections, Lincoln, Watkins concludes, was engaged in “police state” tactics.
The reign of John Adams and the Federalists appears harmless when compared with Lincoln’s dictatorship. The Adams Federalists merely threatened civil liberties, whereas Lincoln abrogated the basic principles of republican government. Free speech, free elections, and due process of law—all essential to any republican government—were sacrificed even in the Northern states facing no danger from Confederate forces.
What is more, Watkins makes a powerful case that abolition would have occurred even if the Southern states had been allowed to secede, and, thus, what we now regard as the purported object of the Civil War—an end to slavery—would have been accomplished without the loss of life and the decades of rancor Lincoln brought us.
What Lincoln did bring us, besides that suffering and slaughter, Watkins shows, is the federal Leviathan we confront today. Aiding and abetting Lincolnian democracy have been the rise of national political parties; the 17th Amendment (providing for direct election of U.S. senators instead of the constitutionally mandated selection by state legislatures); FDR’s New Deal; and, with these, a naive belief that, if some democracy is good, more democracy is better. All of these factors and more, in combination, have been enough virtually to reduce state and local governments to impotence and effect the loss of the liberty the Framers fought for.
Watkins wants to reclaim this liberty, and, as he reminds us, giving back the originally secured constitutional power to the states would more effectively promote true cultural diversity (our 50 states are, after all, exceedingly diverse) and sensible social experimentation (Watkins is a neo-Brandeisian, who would revive that sage’s notion of the states as 50 “social laboratories”); provide a continued check on an overweening federal government; and lead to a healthy dispersal of power. Under such a reconstituted and reconstitutionalized regime, some states might legalize marijuana, some might permit school prayer, some might ban abortion, and some might permit single-sex education in military academies. Such a state of affairs, though certain to drive liberals wild, would actually restore power to the people.
Watkins knows that the Supreme Court is unlikely to permit any such thing, given that the Court’s usurpations have, in recent years, all but crushed state and local governments (although, to its credit, as Watkins acknowledges, the Rehnquist Court has recently recalled that federalism is a major part of the Constitution and begun to restrict some of Congress’s excesses). Watkins favors an amendment setting up a “Constitutional Commission,” composed of officials selected by state legislatures, which would have the power to set aside unconstitutional acts by any of the three branches of the federal government.
As ought to be evident by now, this little book packs a considerable wallop, while Watkins himself is a veritable one-man army marching against the legions of political correctness. The book does have a couple of minor shortcomings. Watkins, fearless and brilliant as he is in exploding current misconceptions about states’ rights, too easily accepts some of the conventional wisdom regarding other matters.
Watkins is wrong about the unconstitutionality of the Federalists’ Sedition Act, owing to his uncritical adoption of Madison and Jefferson’s 1798 reading of the First Amendment. Alas, he even misquotes that amendment, stating that it provides that “Congress shall make no law . . . abridging freedom of speech, or of the press,” when the actual text is “Congress shall make no law . . . abridging the freedom of speech, or of the press” (emphasis supplied). As Leonard Levy and others have shown, and as Watkins’ omitted definite article suggests, the Framers had in mind simply prohibiting prior restraints on the press (what was then understood as “the freedom of the press”); they did not intend to eliminate common law addressing seditious libel, on which the Federalists, in my opinion, sensibly relied. Additionally, I think that Watkins needs to recognize the calculated mendacity of the Jeffersonian campaign in the election of 1800; were he to do so, he would understand the Federalists’ prosecutions for seditious libel not as acts of oppression but as understandable moves to counter the perfidy of some of the more rabid Republicans. The recognition ought also to lead him to rethink his pejorative characterization of Federalist judges in general, and Samuel Chase in particular. These are the things I hope will be corrected in a later edition of the book, and, when they are, I will happily see some of my federal tax dollars employed in grants to state and local schools to purchase Reclaiming the American Revolution as textbooks.
[Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy, by William J. Watkins, Jr. (New York: Palgrave Macmillan for The Independent Institute) 264 pp., $39.95]