State Rights: Reply to Criticism

State Rights: Reply to Criticism (1859)
by Carl Schurz

Selection from a speech delivered in Kenosha, Wisconsin, on March 31, 1859, as reproduced in the Milwaukee Daily Sentinel of April 4, 1859, p. 2. It was headlined with “MEETING AT KENOSHA. Another Speech by Carl Schurz. Reply to his Assailants.” The introduction there stated: “A very large meeting assembled at Kenosha on Thursday evening last, which was addressed by Carl Schurz, of this city, in a speech of great force and ability. After reviewing the argumentative part of his speech at Albany Hall, a few days since, Mr. Schurz thus proceeded:”

481669State Rights: Reply to Criticism1859Carl Schurz

As the political authority of our State government originated in a delegation of powers by the individuals, so the general government of this Union originated in a delegation of certain powers by the States. The government to which those powers were delegated, cannot be the exclusive and sovereign judge of the extent of that delegation, for this would deny the original sovereignty of the bodies which possessed the powers and then delegated them. The assumption by the general government of exclusive jurisdiction, would clearly result in usurpation. The States being the principal depositories of organized local self-government, such an assumption would destroy the whole foundation of our democratic system. The dangerous tendency of governmental authority to aggrandize itself cannot be counteracted but by a system of checks and balances, which in this Union is found in co-ordinate authorities and concurrent jurisdiction. — This was the ground upon which the founders of our general government stood; it is the ground which the most prominent statesmen and the most consistent democrats clearly assumed and firmly maintained. It is the doctrine laid down in the celebrated Kentucky and Virginia resolutions and “Madison's Report.”

But it seems, the advocates of the slave power do not consider this a safe ground to stand upon. In defending the binding force of their pet measure, the fugitive slave act, the see themselves obliged to drop Jefferson and Madison and to take refuge under the wings of Daniel Webster. The modern democracy appeals to the authority of the Federalists; but I want them to understand that the evidence of the Federalists had no terror for the first Republican party, it has still less for the second. [Cheers.]

All their organs, with remarkable unanimity, attempt to roll the massive weight of Webster's name upon me and crush the doctrine I advocate with the ponderous bulk of his authority. And indeed, sir, this would be easy work if I had nothing to oppose to his overwhelming eloquence but my own logic and my own convictions of truth. But there stands the unimpeachable evidence of history, and there stands the unconquerable logic of the fathers of this Republic. Against these even Webster's thunder is but a hollow sound. [Applause.]

You all probably have read Webster's reply to Hayne, delivered in the great parliamentary tournament of 1830. You all have admired this wonderful display of oratorical swordmanship and bowed down before the genius of the man who performed it. So did I! But to pretend, sir, that the construction of the Federal Constitution, contained in that celebrated speech, has never been answered, sounds most ridiculous in the mouths of Democrats. That speech was not only answered, sir, but it was answered thirty years before it was delivered. It was answered, completely and irrefutably, by a doctrine, which the Democrats themselves have so often incorporated into their platforms; I mean the Kentucky and Virginia resolutions and Madison's Report; I shall again refer to them hereafter.

If you strip Webster's great argument of the dazzling attire of his inimitable oratory and anatomize it with the dissecting knife of calm reason and logic, and you will find that his theory of our system of government rests on two principal assumptions.

First, that the general government was erected in a direct maanner by the people and not by the States, that it was created, if I may so express myself, over the heads of the States, that it is just as truly emanating from the people as the State governments. In one word, that it is not a federal, but a national government; and second, that therefore the general government is the exclusive judge of its own powers.

Mr. Webster did not even attempt to support this first assumption by anything like historical evidence; and indeed it stands in a strange contrast to the records of history. — The Convention which framed the Federal Constitution, very far from being called by the act or authority of the people at large, or in order to form a government, which should wield an absolute supremacy over the States, was, in the language of the Congress which called it, convened for the sole and express purpose of revising the articles of Confederation, and reporting to Congress and the several State Legislatures, such alterations and provisions therein, as shall render the Federal Government adequate to the exigencies of government and the preservation of the Union.

To this definite object and no other, was the authority of the delegates to the Convention limited by their commissions from the several States. The Convention acted accordingly. The votes were taken by States. The Constitution was submitted for ratification to the States in their sovereign capacity, and it was made amendable by a vote of the States and by States.

Mr. Madison expresses his views on this subject in the 39th number of the “Federalist” in the clearest manner, and it must be remembered that his opinions at that time were much more favorable to the establishment of a strong government than after a few years experience. He says, “This assent and ratification is to be given by the people, not as individuals composing our entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States derived from the supreme authority in each State; the authority of the people themselves. The act, therefore, establishing the Constitution will not be a national but a federal act. That it will be a federal and not a national act, as these terms are understood by the objectors, the act of the people forming so many States, not as forming one aggregate nation, is obvious from the single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor that of a majority of the States. It must result from the unanimous assent of the States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority in the same manner as the majority in each State must bind the minority, and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of a majority of the States, as evidence of the will of the people of the United States. Neither of these rules has been adopted. — Each State in ratifying the Constitution is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary acts.

There is the evidence of historical facts; but where is Mr. Webster's bold assumption about the origin of our general government? Even the thunder of his voice cannot silence the voice of history.

Mr. Webster's second point is set forth in the following language:

“The constitution has itself pointed out, ordained and established that authority (viz: the exclusive authority of the general government to construe the extent of its own powers.) How has it accomplished that great and essential end? By declaring that ‘the constitution and the laws of the United States, made in pursuance thereof, shall be the supreme law of the land, anything in the constitution and laws of any State to the contrary notwithstanding.’” This, sir, was the first great step. By this the supremacy of the constitution and laws of the United States is declared. The people so will it. No State law is to be valid which comes in conflict with the constitution or laws of the United States. But who shall decide this question of interference? To whom lies the last appeal? This, sir, the constitution also decides by declaring, “that the judicial power shall extend to all cases arising under the constitution and laws of the United States,.” These two provisions cover the whole ground. Such are Mr. Webster's words. Let us analyze them.

If the second provision of the constitution cited does not confer upon the federal judiciary the exclusive or final jurisdiction of all questions of constitutionality, then it is clear, that the first provision cited cannot cover the whole ground, for if the federal judiciary have no exclusive or final jurisdiction of all questions of constitutionality, it remains a matter of construction outside of the federal judiciary, what the constitution means, and whether the laws of the United States are made in pursuance of the constitution.

The doctrine that the Federal Judiciary have exclusive jurisdiction of the cases enumerated in the Constitutional provision referred to has hardly ever been advocated. — Certainly would those, who claim for the Federal Supreme Court appellate jurisdiction over the State — Courts commit the grossest absurdity in claiming at the same time exclusive jurisdiction for the Federal Judiciary; for, how can an appeal from State Court to the Federal Supreme Court, if the State Courts have no jurisdiction at all of the subjects, to which the jurisdiction of the Federal Courts is limited by the constitutional provision? — In fact, the concurrent jurisdiction of the State Courts over many of the subjects mentioned in that section of the Constitution has always been exercised and universally conceded. This being so, the claims of exclusive jurisdiction falls defenseless to the ground.

The whole question, then, turns on the matter of the appellate jurisdiction of the United States Supreme Court over the State Courts. The speech which I delivered a few evenings since at Milwaukee contains a full argument on that point, to which I would respectfully refer you. It is based upon the fact that there are two distinct and different systems of judicial organizations in the United States. The one is the judiciary of the States, and the other the Federal Judiciary. Appellate jurisdiction can be exercised only by a superior over an inferior Court in the same judicial system. But the State Courts bein not mentioned in that article of the Constitution nor in any manner referred to the appellate jurisdiction vested in the Federal Supreme Court can apply only to the judicial systems created by and the only one mentioned in that article of the Constitution, that is to say the inferior Federal Courts and not to the State Courts. If this position is correct — and the attempt to controvert it is yet to be made — where is then, the appellate jurisdiction of the United States Supreme Court over the Courts of the States? Where is then the exclusive and final jurisdiction of the Federal Judiciary over questions of constitutionality? Where is then the exclusive authority of the General Government, to define its own powers? Mr. Webster points to the Constitution and says there it is. We ask where in the Constitution? and receive no answer. It is like the ghost in Hamlet. “Lo, behold! there it is! Here it comes!” But you cannot lay your hand upon it, and the rising day does not show us its trace. [Applause.]

Or is it owing to the shortness of our vision that we do not see it? Then Mr. Madison must have been short-sighted, indeed, when in his celebrated Report, he said: “However true it may be, that the judicial department is in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be the last in relation to the authority of the General Government, not in relation to the rights of the parties to the Constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.

Then Mr. Jefferson must have been one of the most short-sighted of mortals, when he said in his letter to Mr. Jarvis: “The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law, has been heretofore a subject of consideration with me, in the exercise of my official duties. Certainly, there is not a word in the Constitution which has given that power to them more than to the executive branches.

There ends Mr. Webster's constitutional argument on the exclusive authority of the General Government to define its own powers. Madison could not find it in the Constitution, Jefferson could not find it. I ask the Democratic party, can they show it to me, after Mr. Webster has pointed it out to them? [Applause.]

It may be said that the peculiar force of Webster's reply to Hayne, consisted in something else. With his overpowering eloquence, he pointed out the conflicts which possibly might grow out of this system of co-ordinate authorities and concurrent Jurisdiction; and all the confusion it might bring forth, he sets before us in vivid descriptions. He predicts fearful things with fearful eloquence. But how do these predictions stand the trial of historical investigation? “Direct collision,” he says, “between force, and force is the unavoidable result of that remedy for the revision of unconstitutional laws (by the States.)“ But Mr. Webster forgot to state that such conflicts had already occurred; that the “Alien and Sedition Laws” had brought the matter already to a test; that numerous other difficulties had already happened, the direful consequence of which he described with such dismal tones. He forgot to say that the Courts of some States had already repudiated the exclusive authority of the General Government to construe the Constitution, and had resisted, and successfully resisted, too, the exercise of doubtful powers. He forgot to state that the power of public opinion had already more than once overruled the authority of the General Government and the decisions of the Supreme Court, and that public opinion had conquered the usurping tendencies of the General Government by means of the State authorities. We might ask him, where is the mischief grown out of these collisions? Where are your bloody conflicts between force and force? Where is your inextricable confusion of the co-ordinate authorities?

Here are the conflicts — where is your bloodshed? Here is the collision — where is your civil war? Here is the judiciary of the States repudiating the supremacy of the federal Supreme Court — where is your anarchy? Here is the resistance of the States — where is your dissolution of the Union? Show it to us! And what other evidence could Webster bring forward, but the evidence of his imagination? [Cheers.]

That conflicts may ensue in consequence of the States resisting the exercise of doubtful constitutional powers, is true. Nobody denies it. But they are conflicts of opinion, and hardly ever collisions between force and force. Whenever the resistence of the States has the moral sentiment and the common sense of the people on its side, it will succeed, when not it will fail. The nullification movement of South Carolina failed, because the people saw that the establishment of the tariff was clearly within the scope of the delegated powers. But the resistence to the “Alien and Sedition Laws,” the resistence to the assumed supremacy of the federal Supreme Court succeeded because it was armed with the invincible weapons of right and justice. None of these difficulties were ever settled by the Supreme Court; they were settled over the head of the general government — they settled themselves; the patriotic spirit of the people settled them. This is history, sir, and there is philosophy in it. [Applause.]

And now, my friends, I tell you you have but to arraign that daring assumption of unconstitutional power, labelled the Fugitive Slave Law, before the same tribunal of patriotism, you have but to stand firm and to present a bold and unbroken front, and before the lapse of many years, that abominable act of 1850 will walk the same plank which the “Alien and Sedition Laws” walked 60 years ago. The writ of habeas corpus and the trial by jury will stand unimpaired, the rights of the State will be recognized and the Union will be stronger than ever. You will see with your own eyes that the fearful predictions of Mr. Webster do not stand the test of experience.

As a prudent attorney, Mr. Webster argued but one side of the case. He spent all his eloquence against the co-ordinate authority of the States, without devoting one sentence to the greater danger, which arise from the centralizing tendency of the general government. He boldly put forward the unsupported assertion that the general government must be the exclusive judge of its own powers, without stopping to consider that thereby he clothed it with one of the principal attributes of absolutism. He did not tell us that the exclusive and sovereign right to define its own powers, gives the government at the same time, by implication, the right to extend its powers, that construction and assumption will chase each other, and that centralization is the natural result of the process. [Cheers.]

He did not tell us that even elective governments may become despotic, and that the despotism of rival parties, struggling for power and endeavoring to weaken and destroy each other, whom in power is sometimes no less oppressive and odious than the despotism of kings. He forgot to say that not the possibility of collision and conflicts, when fundamental rights are attacked, but the tendency of governmental authority to consolidate itself is the most dangerous stumbling block of democratic experiments. And then he closed his speech with a glowing eulogy on the Union, without having mentioned with one word the principal dangers which threaten its safety, but having indeed advocated a doctrine, the practical operation of which would gradually undermine its foundations; for there is no safety for the Union but in self-government, of which state rights are the strongest bulwark. [Great applause.]

And now let us turn from the brilliant attorney's plea of the great Federalist to the warm philosophy, the truly Democratic wisdom of Jefferson. He says: “Though the experiment has not yet had a long course enough to show us from which quarter encroachments are most to be feared, yet it is easy to foresee from the nature of things, that the encroachments of the State governments will tend to an excess of liberty, which will correct itself, while those of the general government will tend to monarchy which will fortify itself from day to day instead of working its own cure as all experience shows. I would rather be exposed to the inconvenience attending too much liberty, than those attending too small a degree of it.

When John Adams was about to die, he raised his eyes once more and said with his breaking voice: “Thomas Jefferson still survives!” John Adams is dead and the federal party is dead, and Daniel Webster is dead, and Thomas Jefferson still survives. [Great applause.] He survived the federalists, he will survive the modern Democracy. And when Webster's reply to Hayne will only be studied in the schools as a cold pattern of oratorical skill, Thomas Jefferson's words will, as words of true and humane wisdom, be cited for the instruction of growing generations: “I would rather be exposed to the inconvenience attending too much liberty, than those attending too small a degree of it.” This is Jeffersonian Democracy. [Cheers.]

In going through life we are apt to adopt charitable views about the frailities of human nature, and judging weakness less severely we learn to value virtue more. We are inclined to forgive a man his errors when we see that he honestly struggles to find the truth. Even more serious failings we are apt to overlook for the sake of redeeming qualities. But there are certain kinds of degradation which try our charitable feelings too severely. Unconditional servility is one of these. A thorough servile man will do the basest act not only without a scruple but even without a blush. There is a point where charity ends and disgust begins. [Cheers.]

This applied no less to parties than to individuals. The Democratic party have sacrificed to the slave power almost all they had; their original principles, their consciences, their honor, even their power in the Free States. But they always effected a certain reverence for the stern and consistent Democrat, whom they called their father. That man was Thomas Jefferson. They have overcome that weakness also. The slave power wills it, the fugitive slave act is in danger, and they sell their father with as little scruple as they sold their principles. [Great laughter and applause.] They betray him not even with a kiss, but they kick him most unceremoniously aside and throw themselves into the arms of another prophet, whom, not many years ago they considered the most inveterate enemy of Jeffersonian principles, and for whom they could not find words of abuse strong enough — they throw themselves into the arms of Daniel Webster. No, worse than that; they attempt to construe Jefferson's Democracy by the rules of Webster's Federalism. They libel their father and call it a vindication. To me, sir, this is astonishing. No theory of government was ever advocated in this country which agreed so well with the nature and pretensions of the slave-power, as the doctrines of the Federalist. There is an old Federalist in the Presidential chair, and the party acknowledges another old Federalist in their Supreme authority. This for once is consistent. [Cheers.]

I am at a loss, to say whether their attempts at misconstruction are more disgusting or more ridiculous. Listen to the organs of the party which paraded the Virginia and Kentucky resolutions on their platforms.

They tell us “those resolutions speak indeed of the co-ordinate authority of the States on questions of constitutionality, but they mean the supreme and exclusive authority of the general government; Tthey indeed speak of the right of the States to interpose, but they mean acquiescence in the degrees of the central power; they indeed speak of the dangers arising from consolidation, but they mean the dangers arising from the concurrent jurisdiction of the States; they indeed declare certain acts of the general government unconstitutional, not law, void and of no force,” but they mean that these acts are the supreme laws of the land, and must unconditionally be obeyed; they indeed say that the Federal Supreme Court does not possess the exclusive right finally to decide on questions of constitutionality, but they mean that there is no other tribunal co-ordinate with it; they indeed speak of rights, but they mean nothing but duties; they indeed speak of resistance, but the mean submission.” [Cheers.] This is the democratic interpretation of the Virginia and Kentucky resolutions. This is what they call vindicating Thomas Jefferson. I see Thomas Jefferson rise from his grave, and with a look of contempt in his clear eye, I hear him say: “You may abuse and trample upon me as much as you see fit, but, if you please, spare me your vindication.” [Great Applause.] I know, sir, it will make no impression upon them if I prove that Jefferson contemplated positive resistance to the exercise of undelegated powers, and not a mere reference to a constitutional convention, which might be called at some future time, or to the decision of the Federal Supreme Court, but it may be of some benefit to those whose ears are not stuffed with cotton. [Laughter and cheers.]

And I would direct your attention to the fact, that Jefferson's Kentucky resolutions, endorsed by the democratic platform, contains things much stronger than anything that has yet been said by Republican State-Rights-men.

The seventh Kentucky resolution closes with the following sentence: “That the proceedings of the General Government, under color of these articles (meaning its abuse of delegated powers) will be a fit and necessary subject of revisal and correction at a time of greater tranquility, while those specified in the preceding resolutions (meaning the Alien and Sedition Laws) call for immediate redress.”

The eighth resolution, as written by Mr. Jefferson, closes with the following words: “and that the co-States recurring to their natural rights in cases not federal, will concur in declaring these acts void and of no force, and will each take measures of its own for providing that neither of these acts nor any others of the general government not plainly and intentionally authorized by the Constitution shall be exercised within their respective Territories.” Does that sound like submission? Does that sound like referring the difficulties for settlement to the Federal Supreme Court, or to a Constitutional Convention to be called thereafter? What did he mean by “immediate redress,” and by the “measures to be taken by the States?” Of that we find an indication in his letter to Archibald Hamilton Rowan, an Irish exile, whom he invited to place himself under the protection of Virginia from the operation of the “Alien and Sedition Laws.” “The people of Virginia,” says Jefferson, “are sufficiently on their guard to have justified the assurance, that should you choose it for your asylum, the laws of the land, administered by upright judges, would protect you from any power unauthorized by the Constitution of the U.S. The habeas corpus secures every man, citizen or alien, against everything which is not law, whatever shape it may assume.” What construction can the submission democrats put upon this? What else can it mean but that the State Courts should secure his person, by a writ of habeas corpus, as soon as the Federal authorities should attempt to arrest him by virtue of the Alien and Sedition laws? Does it not mean direct interference of the judiciary of the State with the action of the general government? This is Jefferson's own construction of the Kentucky resolutions.

This, sir, is the ground we stand upon. — The laws of Wisconsin, administered by upright judges, shall protect every man against any exercise of power, unauthorized by the Constitution. [Ceheers.]

The habeas corpus shall secure every man here, alien or citizen, against everything which is not law, whatever shape it may assume. The trial by jury shall be vouchsafed to every man in Wisconsin, citizen or alien, black or white, anything in the Fugitive Slave Act or any other assumption of a usurping authority to the contrary notwithstanding.” This is the platform of the Jeffersonian Democracy. [Great applause.]

Let the traitors and cowards hide their faces behind the authority of the Federalists, but let them no longer call Jefferson the father of their party, and the Virginia and Kentucky resolutions a part of their political creed. [Loud cheers.]

I rejoice to see that the development of things has torn the masks from their faces. There they stand in the open light of day. — Let them dare to appear as they are, and the people will treat them as they deserve. Sir, I cannot believe that the citizens of Wisconsin will stand by idle and inactive, and look on when their rights are invaded, and their liberties subverted one by one. I cannot believe that their ears will be deaf to the warning voice of history, and that their hearts will be insensible to the trumpet of battle which summons them to the defense of the most valuable bequest of their fathers. Do not, I entreat you, do not consider this an isolated attempt to encroach upon your rights and to subvert your liberties; it is but a link in an immeasurable chain, by which you are to be bound hand and foot, in order to be laid at the feet of a relentless despotism, called the slave-power. Do not indulge in the dangerous delusion that this and that point gained, they will stop and go no further; that they will not dare to go further. They cannot stop after having once begun. They must go further; for usurpation has but one means to sustain itself, and that is further usurpation. They must proceed or give it up entirely — and who of them did ever speak of giving it up? [Cheers.]

Do not lull your fears into sleep by the idle delusion that the Constitution will prevent them from attempting faurther encroachments; that the Constitution will protect you. Let the annals of this country teach you that the Constitution is no barrier to any kind of tyranny, if the general government have the exclusive authority to construe it. Let them teach you, that once already, in spite of all Constitutional provisions, the liberty of the press, and the trial by jury and the writ of habeas corpus and all the safe-guards of your rights and liberties were by the alien and sedition laws put defenceless at the mercy of the executive of this Republic, and that the Federal Supreme Court readily gave this atrocious usurpation of despotic powers the sanction of its decision. There you see what can be done if the people submit to it, and what will be done if the people provoke it by their submission. For do not forget that the alien and sedition laws were but a measure dictated by passing fears and apprehensions, but that now a power rules over you, which will stop at nothing; which by its very nature is daring, and unscrupulous in its policy, and inexorable in the execution of its designs.

The issue is fairly and plainly made up, and our opponents have accepted it. It is, shall our liberties be defenseless in the hands of the general government, or not? This is the question to be decided. The line is drawn, and the parties have taken their ground. There is the Democracy whose watchword is Submission. The Candidate they have nominated is the very personification of submission. He is one of those men whose existence in this State would have been considered fabulous, but a short time ago — an Administration Democrat, a Buchanan man. What an abyss of submissiveness opens itself in that name! Even a large number of Democrats, who so often had suffered themselves to be driven into line by the whip or the party dictation, shrink back from assuming that odious title. But as I always thought they are no longer so sensitive. The blush has left their cheeks, and will not return. Submission to the Nebraska Bill, submission to the Fugitive Slave Law, but more, submission, of the Dred Scott Decision to the Lecompton policy, and heaven knows what will be added to that black catalogue; submission to everything the Administration may attempt, submission to every doctrine the Federal Supreme Court may promulgate, submission to every whim Judge Miller may indulge in, submission to every attack on our liberties, to every encroachment upon our rights, to every unwarrantable interference with our domestic concerns. That is the programme the Democratic Candidate has to carry out, and it must be confessed they have been exceedingly fortunate in their selection. [Applause.]

On the other hand, I cannot better define the position of our friend Byron Paine, the standard bearer of State Rights, than by repeating the solemn pledge which he threw in the face of the ruling power, when arguing in the Glover rescue case: “I will, so help me God, so long as I have a tongue to speak, never fail to assert the right of every man, woman or child, in the State of Wisconsin, without regard to color, rank, or condition in life, to a trial by jury on all questions touching liberty or life. If this be treason, make the most of it; if it be any crime less than treason, make the most of it.” [Cheers.] This is the price of the battle. Citizens of Wisconsin, you do not fight for yourselves alone. If you stand firm and do your duty as men, then the question of State Rights may be decided on the soil of our State. To you will belong the honor, and the fruits of your victory to the whole nation and to posterity. Here is the battlefield, every man to his gun! [Long and continued applause.]

This work was published before January 1, 1929, and is in the public domain worldwide because the author died at least 100 years ago.

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