Murphy, Walter F.

English

Yale Law School Legal Scholarship Repository

REVIEWS
THE SOVEREIGN STATES: NOTES OF A CITIZEN OF VIRGINIA. By James Jack-
son Kilpatrick. Chicago: Henry Regnery & Co., 1957. Pp. xi, 347. $5.00.
INTEREST in the proper division of political and legal power within the
American federal system has been restimulated by a number of recent events,
notably the Supreme Court's school segregation decisions., Adding to the
growing body of both technical and popular literature which reflects this in-
terest,2 James Kilpatrick has written a volume purporting to defend "inter-
position." His book gives a chronological account of the conflicts between
state and federal governments from the time of the Articles of Confederation
to early 1957. Throughout, his avowed theme is that the states have never
appointed a common umpire to judge the range of powers delegated to the
national government and that an individual state therefore has the right-
even the duty-to interpose its authority and nullify a federal act whenever
it believes the act to infringe its own prerogatives. Professor Robert Harris
of Vanderbilt, for one, has characterized this reasoning as "compounded of
distortions, half-truths, and spurious arguments" and evidence of the "intel-
lectual poverty and political sterility" of the school of thought for which Kil-
patrick claims to speak.'
The great temptation to side with Professor Harris in this fascinating con-
troversy is wisely restrained, for he, like other critics, has assumed that the
book actually means what it says. Does not another possibility exist? Kil-
patrick is editor of the Richmond News Leader and is thus under great
social pressure to conform with local tradition, that is, to support states'
rights and segregation. In such an atmosphere, an ancient technique of writ-
ing flourishes. Rather than submit to the censor's scissors or to social ostra-
cism, subtle and intelligent authors express their opposition to current doc-
trine by deftly weaving into an apparent defense of orthodoxy deliberately
faulty arguments founded on omissions which tend to contradict, if not
ridicule, the current party line.4 In this approach, what a writer fails to say
may be more important than what he does say. Similarly, an author may
seek to undermine accepted dogma by reference to other authors who, on
close reading, are revealed to attack rather than defend the dogma.
Ostensibly, the fundamental constitutional argument of The Sovereign
States is that the tenth amendment is the true keystone of the American
political system. Kilpatrick defines the amendment as reserving to the states
all "inherent powers of sovereign States, not specifically abridged." 5 None-
theless, the educated reader, perceiving that the amendment's legislative his-
tory is strangely omitted, will recall that the anti-Federalists attempted three
1. Brown v. Board of Educ., 347 U.S. 483 (1954), 349 U.S. 294 (1955).
2. For collections of bibliographies, see 1 RAcE REL. L. REP. 501, 835 (1956) ; 2 id.
at 287, 913 (1957).
3. Harris, Book Review, 20 J. PoLITics 229, 230-32 (1958).
4. See STRAuss, PERSECUTION AND THE ART OF WRITING (1952).
5. P. 28. (Emphasis added.)
1958] 1505
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times to change the amendment in order to reserve to the states all powers
not expressly delegated, and that the Federalists were able to defeat this pro-
posal and thus to retain the concept of implied powers in the national govern-
ment.6
Standing alone, this omission in a book dealing with the Constitution would
be merely curious. It becomes more significant when the author's commerce
clause remarks are analyzed. Asserting that, as originally written and under-
stood, "commerce" refers only to the actual act of transporting goods, Kil-
patrick cites Hammer v. Dagenhart.7 Three facts make the case a weird and
self-defeating authority for such a proposition. First, Hammer was decided
in 1918, 130 years after the Constitution was adopted. Second, a more con-
temporary definition given by John Marshall in Gibbons v. Ogden equated
commerce with all forms of commercial intercourse -- the meaning of "com-
merce" in late eighteenth century American usage.9 Third, Hammer v. Dagen-
hart was overruled seventeen years ago and is not a viable precedent.10 That
Kilpatrick did not realize these facts is improbable. On the contrary, it is
quite possible that he is spinning between the lines an intricate web to be
discerned by the thoughtful reader.
Additional evidence supporting this surmise can be found in his discussion
of the fourteenth amendment. Again, he gives the strong initial impression
of rising to defend states' rights. He cites the 1885 case of Barbier v. Con-
nolly 11 to show that the Supreme Court had so respected local police power
in the past that it found constitutional a San Francisco ordinance obviously
aimed only at Chinese.12 In keeping with a predesigned plan, however, he
may be inviting the student of constitutional law to draw his own conclusions.
Such a student will of course realize that the year after Barbier, the Supreme
Court, in Yick Wo v. Hopkins,13 gave a very similar San Francisco regula-
tion a more thorough examination and found it unconstitutional.
The web spins on. James Madison is so frequently cited by KIilpatrick as
a constitutional authority that the reader is impelled to investigate further
what this founding father had to say about interposition. In fact, Kilpatrick
stimulates inquiry by casually admitting that Madison forsook The Cause in
his later years. 14 Responding to the stimulus, the reader finds that when
Pennsylvania was claiming the right to defy a federal court order, President
Madison refused the governor's request for aid and expounded on the presi-
6. For the legislative history of this amendment, see 1, CRossKEY, POLITICS AND THE
CONSTITUTION 680-81 (1953).
7. 247 U.S. 251 (1918).
8. 22 U.S. (9 Wheat.) 1 (1824).
9. See CRossxa'Y, op. cit. supra note 6, at c. IV.
10. United States v. Darby, 312 U.S. 100 (1941).
I 113 U.S. 27 (1885).
12. P. 233.
13. 118 U.S. 356 (1886).
14. Pp. 91, 181.
1506 (Vol. 67
REVIEWS
dential duty to assist in the execution of a judicial decree.15 Later, Madison
characterized interposition as "deadly poison,""' a "spurious doctrine, ' ' 17 and
"preposterous and anarchaical pretension [for which] . . . there is not a
shadow of countenance in the Constitution."' s He furthermore specifically
dismissed the proposition as being put forth with "a boldness truly astonish-
ing."' 9 Claiming that Jefferson had believed that the federal government
possessed the necessary authority to coerce a recalcitrant state,20 Madison
himself asserted that adjudication by the Supreme Court was the proper
method of settling national-state disputes.
21
John Caldwell Calhoun is of course also cited as an authority for Kil-
patrick's supposed opinions. Like the references to Madison, however, the
handling of Calhoun offers another possible clue to the author's real intent.
Kilpatrick portrays Calhoun as consistent in his states' rights position and
implies that his support for the Tariff of 1816 was only an isolated instance
of mistaken judgment.2 2 Does Kilpatrick here speak to those familiar with
the fact that Calhoun was an ardent nationalist for a substantial part of his
public life?23 If this oblique signal is recognized, the vigilant reader will
observe that the proposition which forms the heart of Calhoun's sectionalist
theory is left pointedly unendorsed by Kilpatrick: the right of secession.
According to Calhoun, after a state had nullified a federal act, the contro-
versy would be submitted to the remaining states. If three fourths of them
15. For details of the case-United States v. Peters, 9 U.S. (5 Cranch) 115 (1809)
-see, generally, 1 WARREN, THE SUREME COURT IN UNITED STATES HISTORY 366-89
(rev. ed. 1932).
16. 4 LETTRS AND OTHER WRITINGS OF JAMES MADISON 229 (Lippincott ed. 1865).
17. Id. at 397.
18. Id. at 206.
19. Id. at 418.
20. Id. at 229.
21. Id. at 290. He reasoned:
"The words of the Constitution are explicit that the Constitution and laws of the
United States shall be supreme over the constitution and laws of the several States;
supreme in their exposition and execution, as well as in their authority. Without
a supremacy in these respects, it would be like a scabbard in the hand of a soldier
without a sword in it." Ibid.
And the founding father on whom Kilpatrick leans had this to say about critics of
judicial review:
"It will not escape notice, that the judicial authority of the United States, when
overruling that of a State, is complained of as subjecting a sovereign state, with all
its rights and duties, to the will of a court composed of not more than seven in-
dividuals. This is far from a true state of the case. The question would be between
a single State and the authority of a tribunal representing as many States as com-
pose the Union." Id. at 206.
22. "Calhoun himself supported the tariff of 1816 (in an impulsive speech he was
to regret all his life) . . . ." P. 174. (Emphasis added.) Other than a passing mention
of Calhoun's support of the Second Bank of the United States, p. 145, this is the only
reference to Calhoun's nationalism.
23. See, generally, WILTsE, JOHN C. iCALHOUN: NATIONALIST 1782-1828 (1944).
1958] 1507
THE YALE LAW JOURNAL
agreed with the national government, federal action would be validated,
though only in the assenting states. Any state which disagreed would have
to make a constitutional choice between acceptance and secession .2  Kil-
patrick never alludes to this choice, and without it interposition loses much
of its sting becat.se a sovereign state would still have to bow to outside judg-
ment regarding the extent of its powers.
That Kilpatrick, by citing Madison and espousing an emasculated version
of Calhoun, might really be arguing against interposition and for federal
supremacy seems still more likely as one reads on. The book discusses the
role of Virginia in the resolutions against the Federal Alien and Sedition
Acts, her adverse reaction to Supreme Court decisions in the early nineteenth
century, and her current leadership of the opposition to the school segrega-
tion decisions.2 5 The historical one-sidedness of these passages is designed,
perhaps, to highlight those occasions when Virginia has been in unionist ranks.
In fact, Kilpatrick may have revealed his purpose by noting Virginia's
rejection, in 1809, of Pennsylvania's plea for a court to decide federal-state
disputes. The Old Dominion then declared:
"A tribunal is already provided by the constitution of the United States,
to wit: The Supreme Court, more eminently qualified from their habits
and duties, from the mode of their selection, and from the tenure of
their offices, to decide the disputes aforesaid in an enlightened and im-
partial manner, than any other tribunal which could be erected. ' '26
A painstaking writer could not have supposed that a thoughtful reader would
disregard such a hint, particularly in light of another remark, that Virginia
"revived" the doctrine of interposition in the 1830's.27 Researching between
the lines, the reader here discovers an early Virginia protest of South Caro-
lina's use of nullification 28 and a twentieth-century suit by the Common-
wealth in which her attorney general earnestly argued that the Supreme
Court had authority not only to order a state legislature to convene but also
to command the legislature to appropriate money.
29
As an additional argument for states' rights, Kilpatrick's perplexing book,
seemingly contesting the belief that the Civil War settled the question of state
sovereignty, demonstrates that force does not make law in our type of socie-
24. See 1 THE WORKS OF JOHN C. CALHOUN 241-301 (Crall ed. 1851); 6 id. at
1-59, 144-93.
25. Pp. 62-83, 120-25, 262, 305.
26. STATES RIGHTS AND THE WAR OF 1812, in STATE DOCUMENTS ON FEDERAL RE-
LATIONS: THE STATES AND THE UNITED STATES No. II (Ames ed. 1900).
27. Pp. 179-86.
28. 4 LETTERS AND OTHER WRITINGS OF JAMES MADISON, op. cit. supra note 16, at
395.
29. Brief for Plaintiff, pp. 9, 12, 24, Virginia v. West Virginia, 246 U.S. 565 (1918).
For background details, see Frankfurter & Landis, The Compact Clause of the Con-
stitution--A Study in Interstate Adjustments, 34 YALE L.J. 685 (1925) ; Powell, Coercing
a State To Pay a Judgment: Virginia v. West Virginia, 17 MIcH. L. REv. 1 (1918).
1508 [Vol. 67
REVIEWS
ty.30 But does not this reasoning expose the whole states' rights argument
to far wider attack? Since the southern states themselves appealed to arms,
the author implies that their claims-rejected by Congress, the President, the
Supreme Court and a majority of the states-would not have been legitimized
even by military victory.
Superficially viewed, Kilpatrick's volume seems to be a brief for the preser-
vation of segregation. His treatment of this problem merits special attention,
for here he does not limit himself to moderate and defensible statements, but
echoes almost verbatim many of the white supremacist arguments without
even troubling to sift out the more obvious fallacies. An example is his state-
ment that, as a group, Negroes in the South are "woefully less educable"
than whites. 31 Such inequality, he seems to say, must be natural rather than
the result of inferior Negro schools in the South, since similar findings have
been made in the District of Columbia. But, as everyone who has bothered
to read any of the statistics on school expenditures realizes, the District of
Columbia, to the shame of Congress, had been scarcely less guilty than the
southern states in ignoring the second half of the "separate but equal" for-
mula.32 Thus, by comparing identities, Kilpatrick emerges with an identity.
This could neither have been an unexpected result, nor could it have been
seriously intended to convince an educated reader of the worth of the suprem-
acist argument. 33 And, of course, it must be assumed that a man of Kil-
patrick's stature would not aim his writing at the ignorant and credulous.
Proceeding on this assumption, one naturally wonders why there is no
mention of Crosskey's voluminous study of the Constitution.34 It is, Cross-
key who, above all others, is diametrically opposed to the classic states' rights
position. And although his conclusions are still being heatedly debated, the
encyclopedic nature of his work and the force of his arguments make it im-
possible for any serious commentator to ignore his attack on the states' rights
thesis. Is this omission another indication of Kilpatrick's true beliefs? Could
his failure to take issue with Crosskey stem from actual agreement with
anti-segregationist views? The alternatives-that Kilpatrick did not know of
30. P. 222.
31. P. 280.
32. See AsHMoRE, THE NEGRO AND THE SCHOOLS (2d ed. 1954) ; HOBSON, STATISTICS
OF PUBLIC ELEMENTARY AND SECONDARY EDUCATION OF NEGROES IN THE UNITED STATES
1951-52 (1955); PIERCE, KINCHELOE, MOORE, DREWRY & CARMICHAEL, WHITE AND
NEGRO SCHOOLS IN THE SOUTH: AN ANALYSIS OF BIRACIAL EDUCATION (1955).
33. In the same vein, the book omits reference to Army IQ findings showing higher
group scores for northern Negroes than for southern whites. See Marcuse & Bitterman,
Notes on the Results of Army Intelligence Testing in World War I, 104 SCIENCE 231
(1946) ; Montagu, Intelligence of Northern Negroes and Southern Whites il the First
World War, 58 AM. J. PSYCHOLOGY 161 (1945); see also Harv. L. Record, Oct. 18,
1956, p. 3. For an analysis sustaining Kilpatrick's overt claim of racial superiority, see
McGurk, Psychological Tests-A Scientist's Report on Race Differences, U.S. News
and World Report, Sept. 21, 1956, pp. 92-96.
34. See CRossKEY, op. cit. supra note 6, at 680-81.
1953] 1509
THE YALE LAW JOURNAL
Crosskey or that, knowing of him, felt incompetent to do battle with him-
hardly seem plausible.
The book's omissions, contradictions and inconsistencies could be multi-
plied almost endlessly. The longer Kilpatrick writes, the more straw he strews
about his pages, the deeper he cuts into the underpinning of the very position
he outwardly defends. James Jackson Kilpatrick is clearly an intelligent man.
He was a prot~g6 of the late Douglas Southall Freeman and is now the
editor of a large daily newspaper. His several hundred footnotes and citations
are evidence of considerable research and laborious writing. Could such a
learned and well-trained man have been unaware of the deficiencies in his
overt arguments? Did he not realize that careful readers would immediately
heap ridicule on his stated conclusions? Or did he have a deeper design?
Perhaps his opening sentence points to a hidden purpose. He writes:
"Among the more melancholy aspects of the genteel world we live in is
a slow decline in the enjoyment that men once found in the combat of
ideas, free and unrestrained. Competition of any sort, indeed, seems to
be regarded these days, in our schools and elsewhere, as somehow not
in very good taste."35
This could be a warning that the writer (who subtitles his book Notes of a
Citizen of Virginia) dares not openly oppose the ideas prevalent in his home
state; that we are witnessing a courageous southern editor who has chosen
his own form of social protest for other men, less affected by emotion, to
read and understand.
WALTER F. MuRPHYt
POLITICAL POWER AND THE GOVERNMENTAL PRocEss. By Karl Loewenstein.
Chicago: The University of Chicago Press, 1957. Pp. ix, 442. $6.00.
BASED on six lectures given at the University of Chicago in 1956, this book
is the pilot study for a much larger work which, when completed, should be
a significant contribution to the study of comparative government. This is not
to say that Professor Loewenstein has at this time served only an hors d'oeuvre
with the main course reserved for the future; for this book contains the sub-
stance of the author's thesis. Its present importance-the presentation of his
concept of power as the key to the analysis of government-may even appear
more sharply in this condensed form.
Loewenstein is striving for a framework which expresses the "reality" of
the political process, rather than its philosophical or conceptual basis. His
premise is that "power" can be used as a unifying "conceptual framework"
against which to compare one nation's government with another's.1 In his
35. P. ix.
tAssistant Professor of Politics, Princeton University.
1. Pp. vii, viii.
1510 [Vol. 67


Kilpatrick: The Sovereign States: Notes of a Citizen of Virginia

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