St. George Tucker and the limits of states' rights constitutionalism: understanding the federal compact in the early republic.

• Author: Konig, David Thomas
• Position: Virginia - The Legacy of St. George Tucker

This Article is a critical reevaluation of the conventional portrayal of St. George Tucker as an unyielding champion of states' rights constitutionalism and a jurist whose writings laid the basis for secession as the remedy for violations of the federal compact. (1) Such conventional wisdom rests on Tucker's unjustified reputation as "essentially an agrarian democrat who set his face against the rising capitalism's centralizing tendencies." (2) This Article, a revisionist challenge to the received wisdom, maintains that his thinking about the federal compact and the delegation of powers to the federal government was more complex and nuanced than the uses to which others put it decades later, and that dissolution of the Union--while theoretically available as a right of the states--was so disturbing to him as a practical matter that he made every effort to urge alternative constitutional remedies for abuses of federal authority. Writing at a time of economic and political crisis, Tucker envisioned an expanding republic of diverse sections reaching far to the west, bound together by mutual interests and commerce. These diverse regions would be coordinated and controlled by a federal government whose enumerated authority related to the federative needs of commerce and the integration of regionally diverse economies. His outlook for the future was broader and more significant than the conventional portrayal of Tucker suggests. (3) The need for the commercial integration of regions--North and South, East and West--as the basis for an effective union became embedded in a constitutionalism that granted extensive enumerated federal authority not only under the first five clauses of Article I, Section 8, (4) but also under Article IV, Section 3 of the Constitution. (5)

Such broad federal authority, cabined within the limits of commerce and expansion, may have been the exception that proved the more general rule of Tucker's strict constructionist states' rights philosophy, but it was such a significant exception that it forces us to reconsider his reputation. Given the impact of his edition of Blackstone's Commentaries (6) as the only treatise on constitutional law available in the United States until the 1820s, the views Tucker expounded in his law lectures and in his essays on Blackstone provide deep insight into the way the founding generation understood the theory and purpose of the federal compact. (7) Moreover, in view of his status as "the first of the states' rights commentators upon the Constitution," (8) the preferences he revealed in his substantive discussions of constitutional limitations are important as a guide to better understanding the meaning and limits of "states' rights" and the purpose of the federal compact in the early republic. Tucker, to be sure, never wavered in his belief that the federal government possessed only those powers delegated to it, and he bemoaned the "misconstruction" of the Constitution's Necessary and Proper Clause (9) as a "pretext for an assumption of any power not specified in the constitution, on the part of the federal government." (10) A focus on those statements alone, however, bequeaths to us an incomplete and oversimplified portrait of a complex, profound, and erudite constitutional thinker, well-versed in the contemporary Enlightenment writings of his time and committed to union. From Tucker's activities as a promoter of expansion; financial investor in western lands; professor of law; and author of pseudonymous publications not usually attributed to him or evaluated in examinations of his thinking, we find "some of the more attractive and healthier visions of what an American republic might have become," (11) and not the nation that tore itself apart in bloody struggle four decades after his death.

A close reading of Tucker's discussions of Article I, Section 8 and Article IV, Section 3, reveals a commitment to union that belies the conventional portrait of Tucker. His simultaneous belief in the reserved powers of the states and in the necessity of a federal union capable of integrating the various interests of a regionally diverse nation requires terminology that is more nuanced than that of "secessionist" or "states' rights," and that conveys in their place a more complex constitutionalism. (12) This Article argues that a more appropriate description of his constitutional ideas is "anti-consolidationist," (13) a concept befitting Tucker's vision that the republic's success was based on the force of collective efforts among the various regions of the federal union, whether to empower it in its necessary functions or to restrain it from exceeding them. This Article also argues that a more accurate term than "secessionist" to describe Tucker's attitude toward federal-state disagreements over constitutional law would be conciliationist, a term much more suited to Tucker's temperamental moderation and political commitment to the experiment of union. (14) Such terms may be more cumbersome than those conventionally applied to Tucker, but they are necessary when the genesis of Tucker's views on the federal compact are examined in his own context. This Article therefore gives much attention to Tucker's own historical context by examining the totality of his writings, rather than wrenching his statements out of context and using them as decontextualized quotations for later political battles, and by locating him within a political community of similarly situated leaders who shared his goals, rather than among those who later applied his theories to changed circumstances. This is not to argue that the term "states' rights" does not apply to Tucker--only that the term's meaning to Tucker was more nuanced, qualified, and at times ambivalent, as he developed his complex constitutional principles in the two decades before 1803, in contrast to the simpler and more absolutist meaning given by the hard-liners of the generation that followed him.

1. ST. GEORGE TUCKER AND HIS TIMES: REPUBLICANISM AND ENLIGHTENMENT

   This Article begins by distinguishing St. George Tucker from those commonly associated with him. Though a contemporary on the Virginia Court of Appeals with Spencer Roane, Tucker should not be confounded with his "antagonistic" rival. (15) Tucker, after all, would later accept a federal judgeship, while Roane preferred to remain on Virginia's high court and oppose a federal supreme law of the land. (16) Tucker also should be carefully distinguished from his brother, South Carolina Congressman Thomas Tudor Tucker, who tried unsuccessfully to retain the wording in the Articles of Confederation by inserting the word "expressly" into the Tenth Amendment's reservation of "powers not delegated to the United States by the Constitution." (17)

   Distinguishing St. George Tucker from the younger generation that surrounded him and misapplied his theories to a new and different set of issues is especially important. Tucker was a product of the eighteenth century, and like many others among the founding generation, he drew upon an Enlightenment tradition and a worldview that faded before their eyes in the first decades of the nineteenth century. (18) Tucker, therefore, must not be bracketed with the younger generation around him, such as his notorious stepson John Randolph of Roanoke and Randolph's friend John Taylor of Caroline. (19) Tucker had a worldview different from these men and from his sons, Henry St. George Tucker, a judge and professor of law in Winchester, (20) and Nathaniel Beverley Tucker, a professor of law at the College of William and Mary. (21) The latter, usually referred to as "Beverley Tucker," amply merits the title of "secessionist" and in fact produced a generation of such advocates at William and Mary, but his constitutionalism was a product of another historical era and should not be attributed to his father. According to one study, Beverley changed St. George Tucker's law teachings in a way "that his father would have found curious, perhaps even perverted." (22) Abandoning his father's commitment to the Union and Enlightenment moderation, Beverley used legal instruction as "a form of Christian education and a theater in which he could call for romantic action." (23) Even his own brother, Henry, distanced himself from Beverley's teachings and cautioned him during the Nullification Crisis that he was going beyond what "we have been taught" about the Constitution. (24) Above all, Tucker should not be viewed as an early version of John C. Calhoun or others of the Antebellum period whose use of Tucker's writings removed him from his own context and injected his ideas into constitutional debates that Tucker never touched upon. (25)

   St. George Tucker's impact on American law should be measured by the principles he devised for the success of a confederated republic on a national scale, as applied to the great problems the republic faced in the years between 1783 and 1803, and as he addressed them (perhaps vainly) to the rising generation of lawyers in his law lectures and his essays accompanying his edition of Blackstone.

   This context is essential to understanding Tucker's place in the growth of American constitutional theory. In the two decades after the Treaty of Paris, constitutional thinkers undertook the unprecedented task of creating a republican federal union amid extraordinary conditions that challenged their basic assumptions about confederated sovereignties and the compact that united them. How were they to deal with an expanding union, one that had to amalgamate new states beyond those existing prior to the creation of the federal republic in 1789? How were they to defeat the centrifugal forces of factionalism and localism and to break the cycle of failed confederacies of the past? How were they to adjust to commerce, a force of dubious morality in a largely agrarian republic, especially on a geographically sprawling continent? All of these...