Thursday, September 11, 2014

The Kentucky Resolutions of 1798, Part IV: Rhetoric, and its Uses, contd.

In addition to being at times of a somewhat bloody temperament, Jefferson could also be rather less than gracious to his political opponents, or to those who he felt had betrayed their principles. Though again I maintain that he was not someone who sought out conflict, he was often quick to judge the actions of others and would loudly disclaim the crimes he felt they had committed. He could be stubborn and narrow-minded, and was sometimes given to make assumptions based less on fact and more on feeling. But he was also a canny politician, a master of rhetoric and possessed one of the brightest minds of his generation. Among other things, the Kentucky Resolutions provides evidence of both aspects of the 3rd President’s personality; the light and the dark, the narrow and the expansive.

Near the end of the ninth resolve, for instance, Jefferson seemed to have little trouble laying the blame for the Alien and Sedition Acts squarely at the feet of the Federalist Congress and the Adams administration. What’s more, he did it in a way that appeared to transcend partisanship and made abstract ideas like truth and justice the centre of the debate. Specifically, he wrote that,

“The men of our choice have conferred on the President, and the President of our choice has assented to and accepted, over the friendly strangers, to whom the mild spirit of our country and its laws had pledged hospitality and protection; that the men of our choice have more respected the bare suspicions of the President than the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice.”

By “men of our choice,” Jefferson was referring rather sardonically to the Federalist-dominated Congress, doubtless intending to draw attention to the contradiction between its status as a body elected by the people and the fact that it was using its authority to restrict their rights. Similarly, Jefferson juxtaposed the “the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice,” to the “bare suspicions of the President.” Though the authority of the President of the United States lies mainly in the foreign policy sphere, the Acts had given President Adams a great deal of discretion in identifying, seizing, and potentially deporting those aliens he believed were dangerous. As a result Adams placed himself squarely in Jefferson’s sights, and as the two former colleagues were in the midst of a lengthy period of estrangement Jefferson was apparently more than willing to tar the President with the same brush as his Federalist cohorts in the House and Senate. To that end, Jefferson structured his assertion in a binary way, and opposed truth and justice to one man’s (Adams’) bare suspicions. By this he hoped to invalidate whatever legal claim the President might have had to the authority granted him by the Alien and Sedition Acts. As seemed to be Jefferson’s credo throughout his life, the basis of this, and many of his arguments in the Resolutions, was that law must serve, and not be served; that it was at best a means to achieve something greater, and not an end in itself.

In the final paragraph of the ninth resolve Jefferson made another claim that seems to be based more in rhetoric than in reality, though to what end I’m not entirely certain. Speaking for Kentucky Jefferson claimed with admirable confidence that he had no doubt the governments of the other states, “will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that the compact is not meant to be the measure of the powers of the general government, but that it will proceed in the exercise over these states of all powers whatsoever.” I think it rather strange for Jefferson to have truly believed, in November, 1798, that all or even most of the states would have been in agreement with his position. As mentioned previously the 5th United States Congress, which served from March 4th, 1797 to March 4th, 1799, was dominated by the Federalists. They controlled 22 out of the 31 seats in the Senate and 60 of the 106 in the House, including almost all of the sitting members from New England, large portions of the New York and Pennsylvania delegations, and a fair number from certain states in the Upper South. They were, in short, the dominant organised political force in America, and they had been behind the Alien and Sedition Acts to begin with. For Jefferson to claim that more than a handful of states were of his opinion would seem to serve one of two purposes. It’s possible that he believed, perhaps naively, that the Acts were approved in a fervour, that their true insidiousness was not yet known, and that once it became clear how damaging they truly were the stubborn Federalists would realise the gross error they had committed and set about having them repealed.

Then again it seems equally likely that Jefferson was bluffing, prevailing upon his reader’s guilt, or attempting to portray the ultimate rejection of the Acts as a foregone conclusion in an effort to sway those that were otherwise undecided. Perhaps if he could convince enough of them that they were on the losing side of the argument, and that the Acts were soon to be swept away in a tide of widespread popular indignation, they might be persuaded to change their opinion as well. Which of these it was I cannot say, but I would not rule either of them out. Jefferson was in many ways a manipulative idealist; at times he seemed to be untethered from reality, and at others was all too conscious of it. In 1798 he had reason to be both.

This duality is present again in the seemingly contradictory instructions that Jefferson put forward in the Resolutions. On the one hand, as discussed previously, he appeared to endorse a policy of rejection and resistance. Laws that were found to contradict the Constitution were “void, and of no force,” and every state had the right, nay the duty, to resist their enforcement, perhaps even to the point of spilling blood. While it would be an exaggeration to think of the Kentucky Resolutions as a declaration of rebellion, Jefferson certainly seemed intent on laying the groundwork for a potentially violent rejection of federal authority and subsequent re-evaluation of the character of American government. That being said, on two occasions Jefferson explained in far from revolutionary terms what he hoped Kentucky’s sister-states would do with the arguments he had put forth in the Resolutions. The entire eighth resolve is a recommendation that, “the preceding resolutions be transmitted to the senators and representatives in Congress from this commonwealth, who are enjoined to present the same to their respective houses, and to use their best endeavours to procure, at the next session of Congress, a repeal of the aforesaid unconstitutional and obnoxious acts.” This is echoed in the last sentence of the ninth resolve, where of the Alien and Sedition Acts Jefferson asserted that he was sure the various other states, “will concur in declaring these void and of no force, and will each unite with this commonwealth in requesting their repeal at the next session of Congress.” Far from unilateral nullification, here Jefferson seemed intent on securing the repeal of the controversial Acts via the established legal procedure.

There would appear to be something of a contradiction at work. Was Jefferson endorsing radical resistance to federal authority or simply drumming up grassroots support for a formal legislative effort? The answer, I believe, is both. I do think that Jefferson would have preferred if the Alien and Sedition Acts were repealed by Congress, peacefully and legally. It would have, I’m sure, sat well with him to for the people’s representatives to see the error of their ways, thanks in no small part to discussion and debate, and correct a mistake on their part that threatened the liberties of the masses. And I suppose it’s also entirely possible that he wished to ensure, if his authorship of the Resolutions became known, that he was clearly on the record in favour of a legal remedy to the crisis of the day. He may not have held the office of Vice-President in very high regard (as few who occupied the position ever did), but he was no doubt conscious of the fact that it would have been unpardonably indiscreet to be next in line to the highest office in the land while also openly questioning its legitimacy.

But I also believe that Jefferson wished to ensure that it was clear to the opponents of the Federalists what their strategy was to be, should the legislative route fail. By hinting, suggesting, repeating in bold but vague terms the phrase, “void, and of no force,” and predicting bloodshed if matters were not properly attended to, Jefferson perhaps aimed to plant the seeds of resistance among his Republican followers. He was radical enough to say these things, and cunning enough to couch them just so, as to avoid the appearance of out and out instigation while effectively getting his point across. He did not write that the Adams government was illegitimate, or that the Federalist-controlled Congress should be openly defied; he claimed that the Acts were of no force, and left it for others to determine exactly what that meant. He did not say that the revolution was immanent and to rise up when he gave the word; he argued that open conflict was likely if the federal government continued to accumulate power via questionable means. His wording was bold, certainly, and commanding, but always just measured enough. That was Jefferson; too radical for a man of his position, and too guileful for a man of his temperament.

I’d like to end this series with something of a digression.

In the first resolve, Jefferson wrote that, “whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” Granted that this is something I’ve already touch on, perhaps ad nauseum, but it’s the use of the phrase “undelegated powers” that caught my eye. Being in 1798 an advocate for the principle of strict construction, Jefferson believed that the Constitution needed to be adhered to as closely as possible. Allowing the federal government the use of powers that had not been expressly delegated to it constituted a slippery slope whereby he predicted the American republic would be transformed year by year into the kind of tyrannical regime it had come into being to try and escape. The Alien and Sedition Acts conferred powers on the office of President that were not mentioned in the Constitution; to seize foreign residents, imprison or deport them. This, Jefferson could not accept, and spoke out accordingly.


During Jefferson’s own tenure as President (1801-1809) he happened upon the opportunity to purchase the territory of Louisiana. Formerly owned by Spain, the vast region had been secretly sold to France in 1800 with the intention of forming the cornerstone of Napoleon’s resurrected French Empire in North America. However, events in Haiti conspired to leave the scheme in tatters and the French eager to sell. Jefferson was initially determined only to purchase the city of New Orleans, a perennial sticking point with Spain as it was the only port American farmers in the West could access in order to ship their produce. Negotiator Robert Livingston was consequently dumbfounded to discover that the French were willing to dispose of the entirety of Louisiana for only $15 million (just a shade over the $10 million that Jefferson had been prepared to pay for New Orleans alone). Jefferson feared a sudden French withdrawal of the offer, potentially resulting in the loss of much-coveted New Orleans, and so agreed to purchase the 828,000 square mile territory, effectively doubling the size of the United States at the stroke of a pen. In spite of his good fortune, however, the annexation of Louisiana presented Jefferson and his Republican cohorts with something of a problem.

Though the United States Constitution and the Northwest Ordinance made allowance for the formation and admission of additional states to the Union, neither set down any procedure for the annexation to the United States of entirely foreign territory. The states that had acceded by 1803, Vermont, Kentucky, Tennessee, and Ohio, were all formed out of land considered to already fall within the borders of the United States as determined by the 1783 Treaty of Paris. Annexing Louisiana would therefore have been unconstitutional, or at least would have constituted an assumption of undelegated powers. This fact understandably gave Jefferson and his cabinet pause, and provided his Federalist opponents all the fodder they needed to oppose an initiative on philosophical grounds which they felt threatened them politically. Eager to preserve his scruples and not appear inconsistent, the president even contemplated introducing a constitutional amendment that would fold his proposed actions into the existing Constitutional framework, allowing him to have his cake and eat it too.  

And then he just said, “To hell with it.”

Convinced by Secretary of State James Madison and Treasury Secretary Albert Gallatin that the article of the Constitution that granted the President sole power to negotiate treaties applied to the situation before them and that annexing territory was not explicitly prohibited by the same document, Jefferson abandoned his proposed amendment (along with his principles, his opponents argued) and signed the Louisiana Purchase into law in October, 1803.What’s important about this incident is that it constituted an assumption of power on Jefferson’s part, indeed the greatest assumption of power in American presidential history up to that point. Faced with uncertainty, he did precisely what he had castigated the Federalists for attempting in 1798, and with a minimum of hand-wringing or equivocation. He was willing to assume that when the Constitution made treaties the President’s purview it was without any kind of restriction as to what they might say. Though it was a different kind of assumption to the one the Federalists had made in 1798, it was still that; an assumption of power by the executive branch of the federal government. That he got away with it had perhaps more to do with how many things had changed in the United States between the late 1790s and the early 1800s than with whether or not Jefferson was right.

 In all, I believe this apparent contradiction on Jefferson’s part demonstrates two things worth noting. First, it reinforces what I regard as Jefferson’s central characteristic as a political actor, his devotion to principle over policy; rights over regulations. He may have regarded himself as a strict constructionist and at numerous points over the course of his career spoke out against the unwarranted growth of federal power, but he also believed that preserving the Union meant preserving the liberties of the people. Without land to settle on and farm, Jefferson was sure that Americans would inevitably gravitate towards large urban areas in search of economic opportunity. Once there they would drift into the orbit of any number of unscrupulous characters, from landlords, to bankers, to gamblers, to stockjobbers, and their political independence would suffer the same fate as their financial independence. Cheap land would ensure that the majority of Americans would be economically independent, and in coming to value their freedom would become politically conscious, vigilant, and active citizens. Jefferson believed that Louisiana provided more than enough land to make this ideal a reality, and so one principle was sacrificed for the sake of another.

Second, it demonstrates yet again how fluid ideology and political power were in the early decades of the American republic. In 1798, Jefferson had argued in the Kentucky Resolutions that it was the right of the states to determine the constitutionality of federal laws. They were all equal partners in the Union, he claimed, and it was only by their agreement that the federal government possessed any authority at all. By 1803 he had become president, and took it upon himself as head of the executive branch to interpret the constitution on his fellow citizens’ behalf. He may have been right in 1798, and he may have been right in 1803; without the last-say authority of judicial review, right and wrong were more a matter of consensus than anything else. In 1798 the majority of Americans were willing to accept the Alien and Sedition Acts as necessary, and in 1803 a similar number chose not to question the president’s ability to annex a vast swath of territory. Time and tide have solidified America, hardening its customs into rules and its theories into policy. But in those first tumultuous decades it was anyone’s game, provided they could argue, and rally the people to their flag.

But that’s just my opinion. The words may tell you something different: 

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