View of the Constitution of the United States. St. George Tucker
was barricaded in his Philadelphia mansion against an expected attack of the revolutionary mob.
These differences of culture were also evident in political styles. Plain John Adams rode to his inauguration in a coach drawn by white horses, insisted on being addressed as “His Excellency,” and demanded the strictest social protocol. By contrast, the genuinely aristocratic Jefferson walked to his inauguration with the Virginia militia, established the order of pell-mell at leisurely functions in the White House, and sent his messages unostentatiously to Congress in writing rather than appearing in person.
If the Federalists called their opponents Jacobins, the Jeffersonians could reply that the Federalists were dangerously imbued with “monarchical” tendencies. To Jeffersonians, the Federalists did not actually trust the people, gave only lip service to republicanism, and wanted a government of large, even unlimited, authority. Both Hamilton and Adams were declared admirers of the British constitution, to which they attributed most of what was valuable in American constitutions. By comparison, in View of the Constitution of the United States, Tucker carefully contrasts the British and American constitutions, to the credit of the latter.
Most of what Federalists admired in British principles Tucker considers to be imaginary rationalizations for quite different realities. This is his response to those who he believed over-emphasized the British inheritance. What Americans had deliberately created was superior to what had merely evolved in a system that did not honor the sovereignty of the people.
In 1798 the Federalist Congress passed and Adams signed the Alien and Sedition acts. The Alien Act allowed the president to deport any noncitizen he deemed undesirable. No judicial proceeding was involved. For Tucker and other Jeffersonians this was an assumption by the federal legislature and executive of powers not delegated and also a violation of the separation of powers since it gave the president authority that belonged properly to the judiciary.
Even worse, in Tucker’s judgment, was the Sedition Act, which provided for criminal prosecution in federal courts of persons deemed to have made publications that tended to bring the officers of the federal government into disrepute. Several conspicuous prosecutions were made. Tellingly, the Congress that passed the act designed it to expire on the date they would leave office, in case their opponents gained control. For Jeffersonians such as Tucker, the Sedition Act was a violation of individual liberties, an assumption of power that never had been delegated to any part of the government (after all, the states had just ratified the Tenth Amendment), a subversion of state rights, and obviously an attempt to suppress political opposition and criticism of those in power.
The Jeffersonian response was the series of reports and resolutions that came out of the legislatures of Kentucky and Virginia from 1798 to 1800 and which were written by Jefferson and Madison. These resolutions reasserted that the federal government was of specific, limited, and delegated powers, and that the federal government was the agent of the sovereign people of the states and not the judge of its own limits. The resolutions also declared that, when the federal government egregiously overstepped its limits, the states possessed both the right and the duty to interpose their authority and render such usurpations null and void.
The conflict between federal and state power remained theoretical and potential as long as its issues were settled by normal political processes. Jefferson and his party triumphed in 1800 and remained in power for a quarter of a century (during which New England states asserted similar rights in protest of federal commercial and military policies). There was no showdown, but for Tucker and many others, for several generations, the “Principles of 1798” remained a primary text of constitutional discourse.
Tucker takes for granted the option of secession. If the Constitution draws its authority from the consent of the sovereign—which is the people of the several states—then the sovereign may withdraw that consent (not, of course, something to be done lightly). The people’s consent to the Constitution is not a one-time event that forever after binds them to be obedient to the federal government. A state’s right of withdrawal remains always an open option against a government overstepping its bounds, and is affirmed in the nature of the Constitution itself and in the right of revolution propounded by the Declaration of Independence.
One of Tucker’s principal concerns as a legal and political thinker is to affirm the standing of the judiciary as an independent and coequal power with the legislature and executive. This is an American accomplishment, to be supported in state and federal governments both. For him the judiciary is the realm in which individuals may seek relief from the oppressions of government. The judiciary’s power and independence are therefore essential.
But by no means does this principle encroach upon the even more fundamental federal principle. Tucker insists that it is the duty of the federal courts to restrain the other branches of the federal government, not to make policy and certainly not to invade the rights of the states. The jurisdiction of the federal courts is rightly limited to the delegated sphere of federal power, and carries no imprimatur of supremacy over the state courts and their jurisdictions.
But Tucker sensed the potential for just such extensions of power, something that he and other Jeffersonian jurists were committed to resist. This is reflected in his serious attention to the question of the common law and its application to federal jurisprudence. To infuse the common law into federal jurisprudence would, in his view, give the federal courts power over every question in society. This was the path taken, successfully, by Justice Joseph Story in both teaching and decree, and it is the path that led eventually to the judicial supremacy of the twentieth century. For Tucker there was a clear defense against this possibility: the common law was infused into American law because each of the colonies had adopted such parts of it as were relevant or expedient. Each state was different in this respect, and each state was the judge of its own business. The federal judiciary was created by the people with specific, limited, delegated powers. It was not among those powers to evolve or assume legal principles from some other source. The Constitution and the laws themselves were plain enough, and, unlike the common law, rested upon the consent of the people.
This conviction of states’ rights is dismissed conventionally as a rationalized defense of minority interests, particularly in regard to slavery in the antebellum South. Accordingly, Tucker’s writings on slavery are especially interesting. In 1796 he published a pamphlet that proposed for Virginia a plan of gradual emancipation, and he included this plan as an appendix to his edition of Blackstone. His reasoning and proposals came to naught, but they show what it was still possible to consider and to discuss in the South of Tucker’s time. His time was, of course, before the rise of militant abolitionism in the North, and when the question was for Virginians alone to decide.
Tucker can be seen as prophetic in a number of ways. For instance, one of the chief defects or dangers he finds in the Constitution has to do with the president, and especially with the president’s powers in foreign affairs and the military. Tucker would have preferred to have the House of Representatives as well as the president and the Senate to approve treaties. He understands that it would be potentially in the power of a president to bring on war by creating a situation in which the required declaration by Congress would be no more than an after-the-fact recognition.
Tucker remains a valuable expositor of early American republicanism, well worth the attention of any who wish to understand the origins of our system, both in regard to the Constitution and in regard to the larger conception of republican government that underlies it. Scattered through his disquisitions are many gems of quotable aphorism, as when he comments that a prosperous government and a prosperous people are not necessarily the same thing. Perhaps his thinking is most concisely distilled in this statement: “It is the due [external] restraint and not the moderation of rulers that constitutes a state of liberty; as the power to oppress, though never exercised, does a state of slavery.”
CLYDE N. WILSON
SOURCES ON ST. GEORGE TUCKER
Elizabeth Kelley Bauer, Commentaries on the Constitution, 1790–1860 (New York: Russell and Russell, 1965).
William Cabell Bruce, John Randolph of Roanoke, 1773–1833: A Biography (New York: G. P. Putnam, 1922).
Charles T. Cullen, “St. George Tucker,”