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St. George Tucker’s Jeffersonian Constitution

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.

Reader Discussion

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on October 01, 2019 at 09:24:33 am

[…] Tucker today can help us see the costs of the Hamiltonian victory. St. George Tucker’s Jeffersonian Constitution syndicated from […]

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St. George Tucker’s Jeffersonian Constitution | Best Legal Services
on October 01, 2019 at 12:42:56 pm

The assumption here is that Hamilton was all wrong and Jefferson was all right. In fact, that is not the case. Jefferson vigorously opposed Federalism and the Constitution--so much so he joined up with Edmond Genet--the famed French Republican responsible for the deaths of thousands of innocent French citizens during the French Revolution.

Genet was the founder of the Democratic-Republican Society which advocated overthrow of the U.S. Constitution, assassination of Washington and Adams, and a weak democratic confederacy. (See Myron Magnet's "The Founders at Home" for details.) He came to the United States and started up societies which later formed the foundation of Jefferson's Democratic-Republican Party, later shortened to "Democrat". This was the party that defended slavery and argued for States rights over individual rights.

Hamilton, on the other hand, was acutely aware of the realities of international politics. A confederate democracy would have not been up to the job of uniting the States and keeping European nations out of our hair. That is why Washington, Adams, Madison, Hamilton, Jay, Franklin, and others supported a federation of States. The mercantilist-style economic system applied only to big industries, the rest of the economy was free.

And while I have a romantic attachment to America's original agrarian base, I do not share Jefferson's notion that "yeoman farmers" are the best folks on earth. Because he was not talking about ordinary men and women who worked their own land as everyone seems to think. He was referring to the big plantation owners of the South, slave-owning pseudo-aristocrats who fancied they'd created an ideal society for America. He had no use for small, independent farmers even if they were prosperous.

Hamilton did a lot of things right. If he hadn't, if Jefferson had got his way, we wouldn't be having this conversation. There would be no United States of America. to talk about.

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Standing Fast
on October 01, 2019 at 16:33:04 pm

Right!

Can anyone call immediately to mind any agrarian society that was NOT aristocratic.

Also, as to those yeoman farmers, one need only review the plight of these "yeomen" in the ante-bellum period where it was impossible for them to obtain financing for even the simplest of farm tools, their voices never recognized, land titles snatched out from under them; nor any of their concerns met excepting ONE: "At least they were not BLACK."

Such was the romance of Jefferson's agrarian heaven.

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gabe
on October 01, 2019 at 17:29:26 pm

Thank you! I would like to add that I think Jefferson was a romantic, quite along the lines of Ashley Wilkes in "Gone with the Wind". However, on certain themes, his rhetoric was brilliant and quotable.

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Standing Fast
on October 02, 2019 at 07:23:44 am

Irrespective of either a hamiltonian of jeffersonian view the fundamental principle enshrined in the Constitution and the process followed to get us there is that the Consent of the Governed is required. It is that principle from which we have strayed.

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Colin
on October 02, 2019 at 13:55:58 pm

Well, I get your point, but. The problem is that the difference between the Hamiltonian principle and the Jeffersonian principle is the difference between true individual Liberty and false State's rights. Hamilton believed what the Declaration of Independence says, that government's fundamental purpose is to protect the Liberty of the People. If you trace that concept back to its origins in the Judeo-Christian Natural Law Tradition, you will find that this applies to individuals, societies and nations.

It means that all the laws of the land must turn on that principle or they are unjust. It means that the States DO NOT have a right or the power to deprive any individual of their right to life, liberty, property and pursuit of happiness (meaning self-improvement, not self-destruction). Jefferson and his Democratic-Republicans based their opposition to the Constitution on the premise that they do.

Pro-slavery Southerners before the Civil War and "The South was right" State's-righters after the Civil War maintain the federal government has not power to protect the rights of individuals if a State wishes otherwise. They cite the Ninth Amendment to support their claim that the Constitution does not apply to laws made by states. They say the Tenth Amendment does not apply to the States. They apparently haven't read the Fifth Amendment, which does apply to all the States.

It says that no man shall be deprived of life, liberty or property without due process of law.

People who have been kidnapped and sold again and again, brought to the United States against their will, and in chains, are not willing participants in these so-called "transactions". Slave-owners apparently believed that slavery is consistent with Due Process of Law.

Jefferson wrote scathing condemnations of slavery, but he participated in its evils and sided with anti-Federalists against Washington and the Constitution because, apparently, he believed States have a right to deprive some people of their Liberty without Due Process of Law even if slavery is evil. T

This kind of thinking is why the South was wrong, and the Confederacy went down in flames.

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Standing Fast
on October 03, 2019 at 23:51:44 pm

Before we credit Tucker with having "furnished" the compact "theory" of the Constitution, recall Hamilton's statement in the last essay of the Federalist:

"Every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest. . . . Hence the necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the compact; . . ."

But of course, this isn't what he wanted--which was a quasi-monarchy--it was what he felt compelled to concede.

As to Mr. Jefferson, I'll just quote R. Carter Pittman:

"At the time when Jefferson drew his [proposed draft of the] Virginia Constitution he had not seen George Mason's Bill of Rights and had not been converted to its principles. He began to mature as he improvised the preamble of the Declaration of Independence from the writings of George Mason. He did not fully mature until long after that Declaration had been published to the world. Why do I say that? Examine his proposed Virginia Constitution. There is not a word in it that hints at a natural basis for man's freedom and independence, nor about 'certain inherent rights' that men have, independent of and in spite of laws and of governments, such as 'the enjoyment of life and liberty with the means of acquiring and possessing property and pursuing and obtaining happiness and safety.' There is not a word in it that shows that Jefferson believed that all powers are vested in the people and that officers of government are the mere 'trustees and servants of the people.' There is not a word in it sustaining the theory that Jefferson believed that governments are made for the people rather than for the rulers of the people.

"On the other side there is much in Jefferson's Virginia Constitution that decidedly proves that his ideas of government and the rights of men were then contrary to those held by Mason and the great Jefferson of later years. For example,(4) Jefferson did not purport to confer upon the 'administrator,' or executive officer of Virginia, defined powers. He proceeded upon the theory that an executive officer already had inherent powers, saying: '"He shall possess the powers formerly held by kings save only that he shall be bound by acts of legislature though not named. . . . shall not have prerogative of . . .' etc. He then proceeds to catalogue kingly 'prerogatives' that Virginia executives should not enjoy.

"Among numerous examples of 'prerogatives' that were left for the 'administrator' to claim as the successor of George III were (1) Headship of the established church, (2) granting monopolies, (3) issuing writs of ne exeat, (4) granting patents and copyrights, (5) granting hunting and fishing rights, and many others. Jefferson assumed that the executive was the repository of all kingly 'prerogatives' and that he should retain every residue remaining after the described prerogatives were taken from him."

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JTL
on October 12, 2019 at 11:41:09 am

[…] this man had for seeing the end of the line for either of these visions. Allen Mendenhall’s article “St. George Tucker’s Jeffersonian Constitution” helps to frame my thoughts on […]

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Image of Long Term Effects of Hamiltonianism: St. George Tucker's Antidote - Jeffersonianism - Swamp Fox Research Hub
Long Term Effects of Hamiltonianism: St. George Tucker's Antidote - Jeffersonianism - Swamp Fox Research Hub
on October 12, 2019 at 15:33:19 pm

The North and South is comprised of two very different peoples. From day one, they came from different feuds in politics and religion. There is no instance in history that the two sections should share the same government. So why do Yankees behave like a depraved ex-lover that can't let go? Why do they want what they hate?

Had the North seceded, the South would have never looked up

The giddy hyper-aggressive people in the North have fits and manias--they get excited over slight causes. Yankee orators invented the fourth-of-July school of rhetoric.

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fodwell
on October 12, 2019 at 21:45:37 pm

[…] Allen Mendenhall says “[r]eading [him] 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” — St. George Tucker’s Jeffersonian Constitution. […]

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St. George Tucker’s Jeffersonianism | New Amsterdam Perennialist
on October 12, 2019 at 22:50:05 pm

Where in the US Constitution does it say that the Treasury Security (Hamilton) and the President of the US (Washington) can invade a sovereign state and hang the state's citizens in order to collect an excise tax on whiskey?

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terry
on October 13, 2019 at 10:37:09 am

I believe your comment has merit and would be worth exploring by those that agree with me. It would be nice, then, to always include a list of sources that would/could embellish upon your argument. In this way the public might be further edified and informed. Thanks for commenting.

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Wayne Carlson
on October 13, 2019 at 11:10:43 am

Excellent question for those willing to examine where and when we first began to stray from the principles of liberty the Founders gave lip service to.

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Wayne Carlson
on October 13, 2019 at 11:24:03 am

I agree Colin, but is important to specifically acknowledge that it is the "Consent of the Governed" of the individual, and ultimately sovereign, States that acted as the fundamental bulwark of our liberties. This was intended to act as the indispensable key in restraining the common "federal" government from the Constitutional usurpations that destroyed the American Republic and established the present American Empire.

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Wayne Carlson
on October 13, 2019 at 11:39:04 am

Thank you for your comment fodwell. It is a great truth that receives zero mention in the "great" halls of government or our "great" academic institutions today. This is due of course to the fact that its exposure and consideration could lead to the "thought crime" that our union should be voluntary and that the people of the States have the right to "alter or abolish" the government when they deem it necessary and in their best interests. The present Establishment Elite will do all in their power to crush that idea, so clearly laid out and explained in the Federalist Papers and the debates over the Constitution, since it threatens their political and economic hegemony.

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Wayne Carlson
on October 13, 2019 at 15:09:01 pm

The authority comes from Art. I, Sect. 8, which empowers the Congress "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" and Art. II, Sect. 3 requiring that the President "shall take Care that the Laws be faithfully executed."

The real problem was the law itself, which was abominable in its consequences--as Hamilton plainly must have known.

I don't know that this could ever be proven, but my hypothesis is that this whole matter was orchestrated by Hamilton in order to establish a precedent of the Federal government shooting American citizens, which he (in this view) hoped to effect while General Washington was President. His popularity would provide cover.

I wouldn't call it an "invasion" of a State in this case. Pennsylvania was chosen because she was a very Union-friendly State. There were other jurisdictions where the tax was resisted, but it didn't matter much. Once Hamilton had his precedent, the deed was done. (Nor were the protesters hanged--as Hamilton wanted. General Washington pardoned them.)

The one salutary result was that it helped bolster support for the Jeffersonian revolution and got the "Federalists" kicked out of power.

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JTL
on October 13, 2019 at 15:11:23 pm

Perhaps, but it was because Hamilton got his way that there be much of a recognizable America left by the end of this century.

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JTL
on October 14, 2019 at 13:25:30 pm

I think the people protesting the Whiskey Tax were guilty of rioting, destroying property, threatening bodily harm & death to pubic officials, and overthrow of the Federal Government. If memory serves.

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Standing Fast
on December 19, 2019 at 15:11:35 pm

[…] “St. George Tucker’s Jeffersonian Constitution,” Law & Liberty (October 1, 2…  View this review in PDF by clicking here. […]

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